
Class / / ^ 23^ 

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THE LAW OF THE EMPLOYMENT OF LABOR 



THE MACMILLAN COMPANY 

NEW YORK • BOSTON • CHICAGO 
SAN FRANCISCO 

MACMILLAN & CO., Limited 

LONDON • BOMBAY • CALCUTTA 
MELBOURNE 

THE MACMILLAN CO. OF CANADA, Ltd. 

TORONTO 



THE LAW 



OF THE 



EMPLOYMENT OF LABOR 



BY 
LINDLEY D. CLARK, LL.M. 



Nefc fork 

THE MACMILLAN COMPANY 

1911 

All rights reserved 



HB7634- 



Copyright, 1911, 
By THE MACMILLAN COMPANY. 



Set up and electrotyped. Published November, 1911. 



NortoooK $resa 

J. S. dishing Co. — Berwick & Smith Co. 

Norwood, Mass., U.S.A. 



il.U 



©CI.A303173 



PREFACE 

This volume is an attempt to cover the field of law as it affects 
the employment of labor in the United States. It is at once evi- 
dent that the method cannot be exhaustive, since single depart- 
ments of the subject have properly formed the theme of a num- 
ber of treatises, in some iD stances massive ; while under the head 
of legislation, the compilation of the labor laws of the states and 
the United States, issued from time to time by the United States 
Bureau of Labor, has grown to be a volume of inconvenient 
bulk. It has been thought possible, however, to discuss and 
illustrate by the citation of an adequate number of representa- 
tive cases and statutes the principles of the common law in their 
most important phases, as well as the nature and trend of leg- 
islation, in so far as these are applicable to workmen and their 
employers in their relations as such, in a single volume of con- 
venient size. No detailed account of the items of legislation 
could be presented in a work of this character, since they are 
shifting so rapidly that a volume could hardly be put through 
the press before it needed revision. A summary aDd general 
view of such laws and of their legal construction and effect will 
answer the purpose of the student of the question of the legal 
control of the subjects under consideration, while sufficient ref- 
erences are furnished to enable the pursuit of the subject in 
further detail if desired. An effort has been made to present 
with practical completeness the legal principles involved in pro- 
tective and regulative legislation of this class, in so far as they 
have been made the subject of judicial determination by the 



vi PREFACE 

higher courts, so that, while the volume is intended primarily 
to interest the student of the conditions of labor, it is believed 
that its value as a legal handbook is limited chiefly by its brevity, 
and that it will nevertheless be found worthy of consideration in 
such an aspect. 

A recognized pressing need of the social organization is the 
securing of safe and wholesome conditions of work and an ad- 
justment of the relations of employer and employed in the light 
of their mutual and reciprocal rights and interests, so that there 
shall be neither undue advantages nor undue burdens on either 
side. It is not many years since such legal provision as existed 
was embodied solely in the common law, that body of customs 
and adjudications that had come to have the sanction of the 
courts of England and America to such an extent that it became 
a clog to any progressive adjustment of law to changing eco- 
nomic conditions. Clearly a policy shaped in the days of the 
hand loom and forge and transportation by horse power could 
poorly provide for the needs of industry to-day. The common 
law reduced to a codified form is printed as an appendix to this 
volume, and sufficient evidence of its inadequacy is afforded if 
this code is compared with the scores of statutes compiled in the 
fifteen-hundred-page volume of labor laws, forming the Twenty- 
second Annual Report of the United States Commissioner of 
Labor, presenting the enactments of the legislatures of the 
various states in their attempt to prescribe the respective rights 
and duties and to safeguard the physical and economic interests 
of the parties to the labor contract. There is a feeling, only too 
well founded, that, despite legislation, the dead hand of outgrown 
doctrines of the common law restrains the courts in their con- 
struction of statutes; but that there is encouraging advance in 
this respect cannot be gainsaid. 

The unusual activity at this time of a number of states and 



PREFACE vii 

of various organizations in attempting to solve the problem of 
a better distribution of the burdens of industrial accidents af- 
fords a clear indication that the present doctrine of employers' 
liability will not much longer maintain the position of controlling 
importance which it now occupies. That the fundamental 
assumptions of this doctrine have been long since outgrown in 
the destruction of actual personal contact between employer 
and workman and the growth of the great industries of trans- 
portation, manufacturing, and mining, in which the mutual 
responsibility of fellow-workmen becomes impossible, is a con- 
clusion that cannot be disputed. The widespread study of the 
principles of compensation by federal and state commissions 
and otherwise, and the enactment of compensation laws by the 
federal Congress and by several state legislatures are doubtless 
but the forerunners of great and desirable changes in the atti- 
tude of the law-making bodies and the courts in respect of this 
subject. 

To what extent the collective bargaining of the labor union is to 
affect the contract of employment is another unsettled question. 
As in the above mentioned matter, it is a question of absolute 
individualism giving way to collectivism, or at least a modified 
individualism, as a result of far-reaching changes in the indus- 
trial organization, for which the workingman is not primarily 
responsible. It is not too much to say that epoch-making 
decisions affecting labor organizations are being made and to be 
expected shortly. The law on this subject is in an unsettled 
condition, and will doubtless remain so for a long time to come. 
The diversity of interests of the employing and employed classes, 
as they are now conceived, and as they have always been re- 
garded so far as history gives account of the employment of 
labor, does not permit an anticipation of an early or easy settle- 
ment of the questions involved between these two elements of the 



viii PREFACE 

producing and distributing forces of society. It seems hardly 
more than commonplace to say that the more rapidly the 
reciprocal rights of combined and delegated representation of 
the two parties are recognized, the more rapidly the existing 
problems will find their solution. 

Lindley D. Clark. 
Washington, 1911. 



CONTENTS 

CHAPTER I 
The Contract of Employment 

SECTION PAGES 

1. The basis of the relation of employer and employee. Forms of 

contracts. Status of the labor contract . . . . 1, 2 

2. Conditions of the contract 2-4 

3. Ereedom to contract. Constitutional guarantees . . . 4, 5 

4. Limitations on freedom of contract 6, 7 

5. Police power 7-9 

6. Term of the contract. Implications from periods of payment 9-12 

7. Enforcement of the labor contract. Specific performance . 12-14 

8. Violations of contracts by employees. Recovery of wages for 

partial performance 14-16 

9. Statutory provisions for enforcing contracts. Employers' ad- 

vances. Abandoning service so as to endanger property or 

life 16-23 

10. Seamen 23, 24 

11. Breach of contract by the employer. Damages . . . 24-27 

12. Grounds for discharge. Sufficiency 27-50 

13. Other methods of dissolving the contract relation. Mutual 

consent. Expiration of term. Sickness or death of parties. 

Other incidents occurring during term. Rescission by notice 30-33 

14. Clearance cards 33-35 

15. Procuring breach of contract. Motive. Damages . . . 35-39 

16. Statutes prohibiting interference with contracts . . . 39-42 

17. Right of employer to recover for injuries to employee. Pro- 

curing intoxication 42, 43 

18. Civil rights of employees. Protection as voters. Membership 

in the National Guard 43, 44 

CHAPTER II 
Wages 

19. Definition. Work in violation of law. Payee . . . 45-47 

20. Rate. How fixed 47-50 

ix 



X CONTENTS 

SECTION PAGES 

21. Deductions from wages. Fines for imperfect work, etc. . . 60, 51 

22. Time of payment. Discharged employees. Retaining part 

wages as security 51-55 

23. Place of payment 55 

24. Attachments, garnishments, etc. Exemptions . . . 55-57 

25. Assignments of wages. Wage brokers 57-60 

26. Suits for wages. Attorneys' fees 60, 61 

27. Mechanics' liens 61, 62 

28. Bonds to secure payment of wages 62, 63 

29. Liability of stockholders of corporations for wage debts . . 63 

30. Preference of wage claims 63, 64 

31. Payment of wages in scrip. Store orders .... 64-69 

32. Company stores 69, 70 

33. Freedom of employees as traders. Choice of boarding houses 70-72 

CHAPTER III 
Hours of Labor 

34. Regulation of hours of labor. Overtime. Outside employ- 

ment. Statutes 73-76 

35. Constitutionality of statutes limiting the hours of labor . . 76-79 

36. Sunday labor. Employers' liability for injuries to employees 

working on Sunday. Earnings 79-82 

CHAPTER IV 
Regulation op the Physical Conditions of Employment 

37. Statutory control 83 

38. Regulation of factories and workshops. Agricultural machin- 

ery . 83, 84 

39. Steam boilers 84,85 

40. Railways. Safety appliances. Street railways ... 85, 86 

41. Mine regulations 86 

42. Building operations 86, 87 

43. Accidents. First aid appliances. Reports . . . . 87, 88 

44. Construction and interpretation of safety statutes . . . 88-92 

45. Enforcement 92, 93 

46. Disobedience of laws. Waivers. Assumption of risks. Neg- 

ligence 93-98 

47. Sufficient compliance. Standard of safety . . . . 98, 99 

48. Sale of liquor to employees 99 



CONTENTS xi 



CHAPTER V 
Employment of "Women and Children 

SECTION PAGES 

49. Special regulations. Prohibited employments. Age limits. 

Hours of labor. Suits 100-104 

60. Effect of unlawful employment on the employers' liability . 104-106 

51. Wages of married women and minors 106, 107 

CHAPTER VI 
Restrictions on Employees 

52. Examination, registration, etc., of workmen . . . 108,109 

53. Status of certified employees 109-111 

54. Grounds for legislative interference 112-116 

55. Age as a condition of employment 116, 117 

56. Resident laborers. Aliens ....... 117-122 

57. Convict labor 122, 123 

CHAPTER Vn 
Liability of Employers for Injuries to Employees 

58. What law controls. Statutes 124 

69. Duty of the employer to exercise care. Degree . . . 124-126 

60. Place and instrumentalities. Discretion of the employer . 126, 127 

61. Standards of care fixed by statute. Violation. Compliance as 

a defense 127-129 

62. Repair and maintenance 130, 131 

63. Customary method or use. Departure by employee . . 131 

64. Inspection. Nature and degree. Statutes .... 131-134 

65. Ownership of appliances. Railway cars . . . . . 134, 135 

66. Working force. Numbers and qualifications .... 135, 136 

67. Rules. Enforcement . ... . . . . . 136,137 

68. Instructions and warnings 137, 138 

69. Duties nondelegable 138 

70. Negligence. Proof 139 

71. Defenses of employers. Volenti non fit injuria . . . 139,140 

72. Assumption of risks. Knowledge. What risks are assumed . 141-144 

73. Contracts and rules avoiding liability. Conflicting views. 

Statutes . 144-146 

74. Relief benefits. Acceptance as bar to suits for damages. 

Statutes 146-149 



xii CONTENTS 

SECTION PAGES 

75. Contributory negligence. Proximate cause .... 149-151 

76. What negligence bars recovery 151, 152 

77. Comparative negligence. Statutes 152, 153 

78. The fellow-servant rule. Grounds 153-157 

79. Common employment 157, 158 

80. Contemplated risks 158, 159 

81. Departmental doctrine 159, 160 

82. Representation of the employer 160 

83. Test of rank 160-162 

84. Superior servant doctrine 162, 163 

85. Status of manager 163, 164 

86. Heads of departments 164, 165 

87. Character of act as test. Dual capacity 165-167 

88. Tests not mutually exclusive 167-169 

89. Modification of employers' liability by statute. English law 169-171 

90. Statutes affecting designated employments. Hazardous un- 

dertakings 171, 172 

91. Promise to repair 172, 173 

92. Direct orders 173, 174 

93. Assurances of safety 174, 175 

94. Variation of scope and course of employment. Volunteers . 175-178 

95. Details of work 178, 179 

96. Contracts with labor organizations 179, 180 

97. Employers' insurance against liability. Forms. Scope. 

Mutual companies 180-184 

98. Insurance of employees 184-186 



CHAPTER VIII 
Workmen's Compensation Laws 

99. Federal statute of 1908 187-193 

100. State statutes 193-198 

CHAPTER IX 
Negligence of Employees 

101. Liability of employees for their negligent acts. Injuries to 

fellow-servants. Injuries to third persons. Bonds. Intoxi- 
cation 199-201 



CONTENTS 



Xlll 



SECTION 

102 



103. 
104. 
105. 
106. 
107. 
108. 
109. 



Liability of the employer to third persons for negligence of 
employees. Joint liability of employer and employee 

CHAPTER X 
Sundry Statutes 
Liability of employers for taxes of employees 



Profit sharing by employees. 
Pensions for employees 
Cooperative associations 
Workmen's trains . 
Employment offices 
Bureaus of labor 



Spec 



al stock 



201-204 



205, 206 
206 

206, 207 
207 
207 

208-211 
211, 212 



CHAPTER XI 
Trade and Labor Associations 

110. Nature 213-217 

111. Status at common and statute law 217-226 

112. Rules, by-laws, etc 226-230 

113. Membership 230-235 

114. Collective agreements 235-240 

115. The closed shop 240-246 

116. The union label 246-250 

117. Restrictive combinations. Anti-trust laws .... 250-256 



CHAPTER XII 
Labor Disputes 

118. Conspiracies 257-261 

119. Strikes 261-272 

120. Persuasion or incitement to strike 272-276 

121. Picketing 276-282 

122. Boycotts 282-293 

123. Blacklists 293-295 

124. Interference with employment, intimidation, etc. . . . 295-300 

125. Remedies by suits at law 300-304 

126. Injunctions 305-323 

127. Contempts 323-331 

128. Mediation and arbitration 331-340 

Appendix : A code of the common law 341-345 



LAW OF THE EMPLOYMENT OF LABOK 

CHAPTER I 

THE CONTRACT OF EMPLOYMENT 

Section 1. The Basis of the Relation of Employer and Em- 
ployee. — In order that the status of employer and employee 
may come into existence there must be a contract or agreement 
between the employer or his representative and the person enter- 
ing upon service or his representative. Such a contract may be 
informal to the extent of being only inferable from the conduct 
of the parties, 1 or it may be carefully drawn in writing, signed, 
and witnessed. Contracts which cannot be completed within 
one year, to be enforceable, must be in writing, being within 
the statute of frauds. 2 In case of an implied contract, sufficient 
facts must be shown to support it, 3 since a mere volunteer can 
neither collect wages nor hold the person served liable for 
injuries. 4 No practicable form of contract, however elaborate, 
could be presumed to embody all the conditions and conse- 
quences that result from the consent of the parties, the one to 

1 Nimmo v. Walker, 14 La. Ann. 581. 

2 Jones v. Hay, 52 Barb. 501 (N.Y.) ; Hasselman Printing Co. v. Fry, 9 Ind. 
App. 393, 35 N.E. 1045. 

* Hart v. Hess, 41 Mo. 441 ; Goddard v. Foster, 17 Wall. 123 (U.S.) ; Robin- 
eon v. Cushman, 2 Den. 141 (N.Y.). 

4 Roberts v. Swift, 1 Yeates 209 (Pa.) ; Jones v. Jincey, 9 Grat. 708 (Va.) ; 
Bartholomew v. Jackson, 20 Johns. 28 (N.Y.) ; Langan v. Tyler, 114 Fed. 716 
(C.C.A.). 

b 1 



2 LAW OF THE EMPLOYMENT OF LABOR 

render service, and the other to receive it and to pay compensa- 
tion therefor. In other words, there is formed a status of the 
two parties, determined by long usage, the rulings of the courts 
in unnumbered cases, and many statutory enactments, the de- 
tails of which are to be known only by a consideration of the 
whole law relating to employment, and which no contract 
attempts to express. 

There is not in the United States, nor has there ever been 
since the° establishment of the Government, any difference be- 
tween contracts of hiring and other contracts, so far as the gen- 
erally controlling principles of law are concerned. Competent 
parties (i.e., of legal capacity), mutual agreement, and lawful 
and sufficient consideration, are the essentials here as elsewhere. 
The same limitations, neither more nor less, as to immoral acts 
or those otherwise contravening public policy affect the con- 
tract of employment as they do other contracts. But the 
agreement having been reached, the law intervenes to secure to 
both parties certain rights and defenses that have been con- 
ceived, through a long series of adjudications and legislation, 
to best conserve the interests of the immediate parties to the 
contract, and, in what may fairly be said to be an increasing 
degree, the interests also of that great third party, the general 
public. 

Section 2. Conditions of the Contract. — Among the condi- 
tions imposed by law, but not at all appearing in any customa- 
rily used contract, are the requirement that the employee shall 
be engaged only in lawful pursuits, 1 that he shall be treated with 
reasonable regard to health and comfort, 2 that he shall not be 

1 Warner v. Smith, 8 Conn. 14; Com. v. St. Germans, 1 Browne 241 (Pa.). 
■ Gillia v. Space, 63 Barb. 177 (N.Y.) ; Luske v. Hotchkiss, 37 Conn. 219. 



THE CONTRACT OF EMPLOYMENT 3 

exposed to other risks than those reasonably incident to his 
employment, 1 and that the conditions surrounding employment 
shall not be corrupting or immoral. 2 On the other hand, an em- 
ployee is supposed to be competent, 3 to obey reasonable instruc- 
tions and commands, 4 to use ordinary care in the performance 
of his work, 5 and to have due regard for his master's interests. 6 

Rules of the employer or customs of the trade, not in terms 
forming a part of the contract of employment, must be shown to 
have been known to both parties at the time the contract was 
entered into if they are to be incorporated therein as a matter of 
defense in an action at law. 7 And a mere continuance in service 
after becoming aware of regulations not known at the time the 
contract was made is only evidence tending to show assent, and 
is not conclusive. 8 

Where the rate of wages is not definitely fixed, custom may 
be referred to, and the court will undertake to find out what the 
services were reasonably worth and award a quantum meruit, 9 
due regard being had for special skill or professional ability ; 10 
and so]of the other factors that enter into a contract of employ- 
ment, though the rules of common law, the effect of custom, and 
even the terms of the contract itself are becoming more and 

1 See Chapter VI. 

2 Warner v. Smith, supra; Berry v. Wallace, Wright 657 (Ohio). 
* Waugh v. Shunk, 20 Pa. St. 130 ; Parker v. Piatt, 74 III. 430. 

4 Lawrence v. Gullifer, 38 Me. 532. 

s McCracken v. Hair, 2 Speers 256 (S.C.). 

6 Gower v. Andrew, 59 Cal. 119, 43 Am. Rep. 242. 

7 Dodge v. Favor, 15 Gray 82 (Mass.) ; Harmon v. Salmon Falls Mfg. Co., 
35 Me. 447. 

8 Collins v. Iron Co., 115 Mass. 23. 

9 Bagley v. Bates, Wright 705 (Ohio) ; Miller ». Cuddy, 43 Mich. 273, 38 Am. 
Rep. 181. 

10 Stockbridge t. Crooker, 34 Me. 349. 



4 LAW OF THE EMPLOYMENT OF LABOR 

more affected by statutory enactments and the construction 
put upon them by the courts of the various states. 

The general rule applicable to the formation of contracts that 
there must be a meeting of the minds of the parties thereto, is in 
force in labor contracts to prevent fraud and misrepresentation 
as to the conditions in existence in the employer's works or 
business ; but a few states have enactments looking to the more 
specific prohibition of deception, and particularly in the matter 
of the existence or non-existence of strikes. 1 The nature of the 
employment and the prevalent sanitary conditions must not be 
misrepresented, under like penalty, though with reference to 
strikes, it is in most cases made unlawful to fail to give notice 
where they are in existence, while only actual false statement 
with reference to other conditions is condemned. 

Section 3. Freedom to Contract. — Whether the right of 
contract is inherent in free manhood, as has been concluded 
from the guarantee of Magna Charta that "No freeborn man 
shall be disseized of his free tenement or liberties or his free cus- 
toms," taking "customs" to include freedom of trade; or 
whether it depends on such guarantees as are found in our 
national and state constitutions, is a question of historical in- 
terest, but not of controlling importance. There is frequent 
reference to the fourteenth amendment to the Constitution of 
the United States in cases in which the freedom of contract is 
discussed, 2 as well as to the similar provisions of the state consti- 
tutions relative to the protection of liberty and property. While 
these seem practically to embody the doctrine of the clause of 

1 Cal., Sim's Penal Code, p. 635 ; 111., R.S., ch. 48, sec. 49 ; Mont., Acts 1903, 
ch. 80 ; Oreg., Acts 1903, p. 193 ; Tenn., Acts 1901, ch. 104. 

1 Allgeyer v. Louisiana, 165 U.S. 678, 17 Sup. Ct. 427 ; Lochner v. New York, 
188 U.S. 45, 25 Sup. Ct. 539. 



THE CONTRACT OF EMPLOYMENT 5 

Magna Charta quoted above, it is sufficient for our present pur- 
pose that these guarantees exist, and that, with the common 
acceptance of the view that the protection of property involves 
the protection of the right to make reasonable contracts with 
reference to its acquisition and use, they are understood to 
guarantee the freedom of the contract of employment. 1 

Labor is the workingman's capital, and it is his right to em- 
ploy it or dispose of it as may appear to his judgment best in 
the conditions in which he finds himself, subject only to the 
rules of law that forbid contracts which are against public 
policy. 2 Every man has the right to earn his living, or to pur- 
sue his trade or business, without undue interference, a right of 
absolute freedom to employ or to be employed, 3 to make con- 
tracts with reference to service, whether as employer or em- 
ployee, or to refrain from making them, for any reason or no 
reason, 4 and such a right is both a liberty and property right, 
within the guarantees of the federal Constitution. 5 Such a 
statute as that of Indiana, therefore, which prohibits employers 
from discriminating against persons or classes of persons seeking 
employment, by posting notices or otherwise, 6 is obviously of 
no value, since the employer is as free to reject as the employee 
is to refuse any proposition for employment, no matter by whom 
made, or for what reason held undesirable. 

1 Lochner v. New York, supra; Muller v. Oregon, 208 U.S. 412, 28 Sup. Ct. 
324 ; Atkins v. Fletcher Co., 65 N.J. Eq. 658, 55 Atl. 1074. 

2 People v. Marx, 99 N.Y. 377, 2 N.E. 29 ; In re Jacobs, 98 N.Y. 98 ; Frorer v. 
People, 141 111. 171, 31 N.E. 395. 

* Jersey City Printing. Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230. 

* Adair v. United States, 208 U.S. 161, 28 Sup. Ct. 277 ; New York, C. & St. 
L. R. Co. v. Schaffer, 65 Ohio St. 414, 62 N.E. 1036. 

* State v. Missouri Tie & Timber Co., 181 Mo. 536, 80 S.W. 933 ; Jones t». 
Leslie, (Wash.) 112 Pac. 81. 'A.S., sec. 7087p. 



6 LAW OF THE EMPLOYMENT OF LABOR 

Section 4. Limitations on Freedom of Contract. — This free- 
dom is legal rather than economic and practical, and has been 
called a legal fiction, a designation which appears just in view of 
the widespread manifestation of a purpose to interfere with and 
restrict it by legislative action. The man without invested 
capital requires the constant return from his labor in order that 
his own needs and those of his dependents may be met ; while 
the employer, who may as imperatively require labor for the 
conduct of his business, still has between him and immediate 
want a reserve fund which makes him the economic superior of 
the average man seeking employment. To lessen this in- 
equality, organized labor provides "out-of-work" and " strike" 
funds, to tide the membership over the period of unemploy- 
ment. The rules of labor organizations also restrict the free 
action of their members, while society at large proceeds by way 
of legislation, seeking to fix the conditions of employment, 
either generally, or for specific industries or groups of indus- 
tries. There is now a very considerable body of such legislation 
relating to the modes and times of paying wages, and, on public 
works, the rate of wages ; to the hours of labor, the condition 
of working places, the guarding of machinery, the employment 
of women and children, and much also that would not come 
within the scope of statutory regulation were it not for the 
recognized difference between the average employer and the 
average employee in freedom to choose or reject the conditions 
of employment. Of wider general scope, but of less importance 
as actually affecting the contract of employment, are provi- 
sions found in the codes of a few states, taken from the work of 
a commission appointed by the state of New York in the year 
1857, to draft a code for that state. This draft was a codifica- 



THE CONTRACT OF EMPLOYMENT 7 

tion in pretty complete form of the common law, and, though 
it was rejected by the state for which it was prepared, it was 
adopted by California, Montana, and the Dakotas. 1 It is, as 
indicated, nothing more than a restatement of the principles 
of the common law, so that while it embraces many of the topics 
to be considered in the present undertaking, its provisions call 
for no discussion apart from that given the rules laid down by 
the courts as the common law. 

Section 5. Police Power. — The question naturally arises as 
to the right or authority of legislatures to intervene in the 
matter of contracts of employment so as to modify the other- 
wise prevalent rule of unrestricted freedom; and the answer is 
that it is only as an exercise of the so-called police powers of the 
states that such acts can be accepted as valid. What these 
police powers are is not a matter of accurate definition, inas- 
much as they concern the policy of the individual states, which 
is subject to growth and change with changing industrial and 
social conditions. 2 The police power, in its broadest accepta- 
tion, means the general power of a government to preserve and 
promote the public welfare by prohibiting all things hurtful to 
the comfort, safety, and welfare of society, and establishing 
such rules and regulations for the conduct of all persons and the 
use and management of all property, as may be conducive to 
the public interest. 3 It relates to the safety, health, morals, 
and general welfare of the public. Both property and liberty 

1 See Appendix. This code has been amended in some respects in at least 
three of the states named, but is reproduced in practically its original form as 
presenting in brief the principles of the common law governing the contract of 
employment. It is referred to as the Field Code, from its chief editor. A 

* Atkin v. Kansas, 191 U.S. 207, 24 Sup. Ct. 124 ; Holden v. Hardy, 169 U.S. 

366, 18 Sup. Ct. 383. « Am. & Eng. Cyc. of Law, Vol. 22, p. 916. 



8 LAW OF THE EMPLOYMENT OF LABOR 

are held on such reasonable conditions as may be imposed by 
the governing power of the state in the exercise of this power, 
and with such conditions the guarantees of freedom of contract 
in the fourteenth amendment were not designed to interfere. 1 
In the case just cited, it was said that this power exists in the 
sovereignty of each state, but is none the less subject to the in- 
quiry whether any particular exercise of it or enactment under 
it is fair, reasonable, and appropriate ; or whether, on the other 
hand, it is an unreasonable, unnecessary, and arbitrary inter- 
ference with the right of individuals to their personal liberty. 
Not every invasion of the right of liberty or property will be 
condemned, however, 2 and it will be left to the legislatures of the 
states to declare, as the representatives of the people, what 
restrictions, within the constitutional limitations, will be placed 
on the freedom of contract ; and it is laid down by our highest 
tribunal that, while it is the duty of the courts to guard the con- 
stitutional rights of the citizen against merely arbitrary power, 
it is equally true, and imperatively demanded, that legislative 
enactments declaring the policy of the state should be recog- 
nized and enforced by the courts unless they are plainly and 
beyond all question in violation of the fundamental law of the 
Constitution. 3 The fact that principles are at one time accepted 
as governing under the decisions of the courts construing the 
common law does not bind them irrevocably upon the state. 
"While the court, unaided by legislative declaration, and apply- 
ing the principles of the common law, may uphold or condemn 
contracts in the light of what is conceived to be public policy, 

» Lochner v. New York, 198 U.S. 45, 25 Sup. Ct. 539. 

* People ex rel. Williams Engineering, etc., Co. v. Met*, 193 N.Y. 148, 85 N.E. 
1070 ; Booth v. People, 186 111. 43, 57 N.E. 798. 
■ Atkin ». Kansas, supra; Holden v. Hardy, supra. 



THE CONTRACT OF EMPLOYMENT 9 

its determination as a rule for future action must yield to the 
legislative will when expressed in accordance with the organic 
law. The legislature, provided it acts within its constitutional 
authority, is the arbiter of the public policy of the state." * 

Section 6. Term of the Contract. — Apart from those con- 
tracts which by their terms fix the period of their duration stands 
the body of contracts to hire generally or for an indefinite time, 
forming the vast majority of labor agreements. Id most juris- 
dictions in this country a contract for an indefinite period is, 
subject to proof to the contrary, terminable at any time at the 
option of either party. 2 An unsupported promise for permanent 
employment is of this nature ; 3 but if an employee has secured 
an option to his contract for permanent employment by waiv- 
ing a claim for damages, 4 or by giving up a competing business 
to engage in the defendant's service, 5 the contract cannot be 
set aside merely at the choice of the employer. 

According to the English rule, 6 which is also largely followed 
in this country, the term of the contract may be inferred from 
the conditions agreed to as to the times of payment, payments 

1 Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549, 31 Sup. Ct. 259. 

2 Lord v. Goldberg, 81 Cal. 596, 15 Am. St. Rep. 82 ; Kansas P. R. Co. v. 
Roberson, 3 Colo. 142 ; Babcock, etc., Co. v. Moore, 62 Md. 161 ; Hotchkiss v. 
Godkin, 63 App. Div. 468, 71 N.Y. Supp. 629. 

3 Lord v. Goldberg, supra; Louisville, etc., Co. v. Offutt, 99 Ky. 427, 36 S.W. 
181 ; St. Louis, I. M. & S. R. Co. v. Mathews, 64 Ark. 398, 42 S.W. 902. 

« Smith v. R. Co., 60 Minn. 330, 62 N.W. 392 ; Pierce v. R. Co., 173 U.S. 1, 19 
Sup. Ct. 335 ; Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N.E. 802 (con- 
tract for "steady and permanent employment" held to be one for life, or so long 
as the employee should be able, ready, and willing to perform the services assigned 
by the company) ; Stearns v. R. Co., 112 Mich. 651, 71 N.W. 148. But see 
Texas M. R. Co. v. Morris, 29 Tex. Civ. App. 491, 69 S.W. 102. 

• Carnig v. Carr, 167 Mass. 544, 46 N.E. 117, 35 L.R.A. 512, and note. 

8 Emmens v. Ederton, 4 H.L.C. 640 ; Buckingham v. Canal Co., 56 L.T.R. 
(N.S.) 885. See Wood, M. & S., 272. 



10 LAW OF THE EMPLOYMENT OF LABOR 

by the day, week, month, or year raising the presumption that 
these periods indicate the length of time the contract is to run, 1 
or rather that they mark the time at which it may be termi- 
nated by either party. 2 Definite provisions of the contract will 
of course control, but in their absence, language denoting periods 
of payments or measurements of salary or wages, as weekly or 
monthly, etc., is of great weight in determining the period of the 
contract. 3 Where the time is not indicated with greater def- 
initeness than is set forth in the simple statement that the hiring 
is at the rate of a designated sum per annum, the contract has 
been held to be an indefinite one ; 4 but no good reason appears 
why, in the absence of other considerations impairing the weight 
of such evidence, a contract at a yearly rate should be on a dif- 
ferent footing from a hiring by the week or month, and there is 
abundant authority for holding that a hiring for a year is meant 
when it is at a yearly rate. 5 Especially is this the case where the 
word " salary" is used. 6 When one continues in service after 
the expiration of an agreed or implied term of contract, the law 

1 Moss v. Decatur Land, etc., Co., 93 Ala. 269, 9 So. 188 ; Tenn. Coal, etc., Co. 
v. Pierce, 81 Fed. 814 (CCA.) ; Cronemillar v. Milling Co., 134 Wis. 248, 
114 N.W. 432 ; Beach v. Mullin, 34 N.J.L. 343 ; Horn v. Association, 22 Minn. 
233 ; Kelly v. Wheel Co., 62 Ohio St. 598, 67 N.E. 984. 

2 Whitmore v. Werner, 88 N.Y. Supp. 373 ; Capron v. Strout, 11 Nev. 304 ; 
Norton v. Cowell, 65 Md. 359, 4 Atl. 408. 

3 Tubbs v. Cummings Co., 200 Mass. 555, 86 N.E. 921. 

4 Haney v. Caldwell, 35 Ark. 156 ; Tucker v. Coal, etc., Co., 53 Hun 139 
(N.Y.) ; Martin v. Ins. Co., 148 N.Y. 117, 42 N.E. 416; Brookfield v. Drury 
College, 139 Mo. App. 339, 123 S.W. 86. 

* Maynard v. Corset Co., 200 Mass. 1, 85 N.E. 877; Chamberlain v. Stove 
Works, 103 Mich. 124,61 N.W. 532; Moss v. Decatur Land Co., 93 Ala. 269, 9 
So. 188 ; Kirk v. Hartman, 63 Pa. 97 ; Kellogg v. Ins. Co., 94 Wis. 554, 69 N.W. 
362 ; Magarahan v. Wright, 83 Ga. 773, 10 S.E. 584. 

• Maynard v. Corset Co., supra; People v. Meyers, 11 N.Y. Supp. 217; Hen- 
derson t>. Koenig, 168 Mo. 356, 68 S.W. 72. 



THE CONTRACT OF EMPLOYMENT 11 

presumes that the original contract is renewed as to both period 
and rate of payment. 1 The Field Code contains the above pro- 
visions as to implied term and renewal in statutory form. 2 

Opposed to the doctrine of implied term set forth above is 
one that no inference whatever is to be drawn from the use of the 
words ' ' week," " month/' or " year " in fixing the rate of wages. 3 
One writer goes so far as to say that the rule is inflexible that a 
hiring at so much a day, week, or year raises no presumption as 
to the length of time the service is to continue, and that the 
employee is charged with the burden of proving that any other 
than an indefinite hiring is meant, terminable at the will of 
either party. 4 In this view, a hiring by the month can be ter- 
minated at any time, either during the month or at its end, 
without notice ; 6 and the word " salary " imports nothing as to 
term, even when stated as a yearly salary. 6 This statement is 
obviously too sweeping, and contrary cases are to be found in 
some of the jurisdictions from which citations come in support 
of it ; 7 and the better reason clearly favors the attaching of 
some measure of significance to the designations of periods of 
time, even though the principal idea is that of rate of payment 
and not of term of employment. 

1 Chemical Works v. Pender, 74 Md. 15, 21 Atl. 686; Tattersonu. Mfg. Co., 
106 Mass. 56 ; Adams v. Fitzpatrick, 125 N.Y. 124, 26 N.E. 143. 

2 See Appendix. 

» Weidman v. United Cigar Stores Co., 223 Pa. St. 160, 72 Atl. 377. 

* Wood, M. & S., 2d ed., sec. 136. 

8 The Rescue, 116 Fed. 380 ; The Pokanoket, 156 Fed. 241 (CCA.) ; Evans 
v. R. Co., 24 Mo. App. 114 ; Haney v. Caldwell, 35 Ark. 156 ; Frank v. Maternity, 
etc., Co., 107 N.Y. Supp. 404. 

■ Edwards v. Seaboard & R. R. Co., 121 N.C. 490, 28 S.E. 137 ; Martin v. Ins. 
Co., 148 N.Y. 117, 42 N.E. 416. 

7 The Hudson, Olcott 396, Fed. Cas. No. 6831 ; Zender v. Seliger-Toothil 
Co., 39 N. Y. Supp. 346 ; Jones v. Trinity Parish Vestry, 19 Fed. 59. 



12 LAW OF THE EMPLOYMENT OF LABOR 

Entire contracts, or those which require complete performance 
before any part can be considered as performed, allow no pro- 
portionate recovery for part performance, 1 — a rule which may 
well be held to apply to a sailor shipping for a voyage or a tenant 
engaging to make a crop. The implication of terms, as from a 
hiring by the month or year, has been held to carry with it the 
conclusion that such a contract was entire, i.e., for full periods 
of months or years, and the obvious hardship of such a rule and 
the failure of the reason therefor in many cases where it is clearly 
practicable to consider contracts as severable have led to the 
rejection by some courts of such a rule, 2 which rejection may in 
turn have had something to do with the modification of the rule 
as to implied terms; since it is obvious that if the employee 
claims the right to hold his employer to payment for entire 
units of time of employment, he is equitably obligated to render 
entire units of service or waive claims for fractional parts of the 
unit of time during which he may have worked, be it week, 
month, or year. 3 

Section 7. Enforcement of the Labor Contract. — A prime 
consideration in connection with any agreement is the matter 
of its enforcement, i.e., the question as to procuring the actual 
specific performance of the act concerning which the agreement 
was made, or the redress available if this is not feasible. In 
general, contracts are enforceable in equity according to their 
terms, unless there is an adequate remedy in a suit at law for 
money damages. The labor contract is an exception to the 

1 McMillan v. Vanderlip, 12 Johns. 165 (N.Y.) ; Jennings v. Camp, 13 Johns. 
94 (N.Y.) ; Davis v. Maxwell, 12 Mete. 286 (Mass.). 

« Britton v. Turner, 6 N.H. 481 ; Pixler v. Nichols, 8 Iowa 106 ; Ricks v. Yates, 
6 Ind. 115 ; 2 Pars. Cont. pp. 40, 41. See sec. 8. 

» Beach v. Mullin, 34 N.J.L. 343 ; 2 Pars. Cont. p. 35. 



THE CONTRACT OF EMPLOYMENT 13 

general rule, no enforcement of the specific performance of 
merely personal services being granted, 1 because of the inability 
of the courts to supervise or insure their execution, 2 as well as 
because such enforcement would savor of involuntary servi- 
tude. 3 An employee contracting to render exclusive services of 
a unique or extraordinary character, 4 or whose breach of con- 
tract would involve the probable disclosure of trade secrets, 5 
may, however, be enjoined from rendering service to another 
during the period of time for which the previous contract was 
to run. The application of this remedy will be restricted to a 
reasonable length of time, 6 though the restriction as to time 
does not apply to the matter of the disclosure of trade secrets, 
that not being construed as a contract in restraint of trade. 7 
A perpetual injunction will therefore lie against the disclosure 
of trade secrets by an employee who has been inducted there- 
into under an agreement, express or implied, that they shall not 
be disclosed ; 8 and an employee is bound by such an agreement 
without regard to the methods by which he obtained his knowl- 

1 Arthur v. Oakes, 63 Fed. 310 ; Roquemore & Hall v. Mitchell Bros., 167 Ala. 
475, 52 So. 423 ; Iron & Steel Co. v. Nichols, 73 N.J. Eq. 684, 69 Atl. 186 ; Ga. 
Code, sec. 4919. 

* Wm. Rogers Mfg. Co. v. Rogers, 58 Conn. 356, 20 Atl. 467. 
» Clark's Case, 1 Blackford (Ind.), 122, 12 Am. Dec. 213. 

* Lumley v. Wagner, 1 De Gex, M. & G. 604 ; Keith v. Kellermann, 169 
Fed. 196 ; McCall v. Wright, 198 N.Y. 143, 91 N.E. 516 ; McCaull v. Braham, 
16 Fed. 37 ; Ga. Code, sec. 4919. 

6 Harrison v. Sugar Refining Co., 116 Fed. 304 (CCA.) ; McCall v. Wright, 
supra. 

6 Harrison v. Sugar Ref. Co., supra; Iron & Steel Co. v. Nichols, supra; 
see also Marble Co. v. Ripley, 77 U.S. (10 Wall.) 339. 

7 Jarvis v. Peck, 10 Paige's Ch. 118 (N.Y.) ; Taylor v. Blanchard, 13 Allen 
370 (Mass.), 90 Am. Dec. 203 ; Thumt>. Tloczynski, 114 Mich. 149, 72 N.W. 140. 

8 Peabody v. Norfolk, 98 Mass. 452 ; Stone v. Goss, 65 N.J. Eq. 756, 55 Atl. 
736 ; H. B. Wiggins' Sons Co. ». Cott-A-Lapp Co., 169 Fed. 150. 



14 LAW OF THE EMPLOYMENT OF LABOR 

edge of the secret. 1 An agreement that is so broad as to pre- 
clude the disclosure or use of one's own secrets or discoveries 
made during employment, or of all the treatments and pro- 
cesses used by his employer, whether secret or not, is not 
enforceable by injunction. 2 

Section 8. Violations of Contracts by Employees. — Actions 
for damages are available for the violation of labor contracts as 
in the case of other broken contracts, 3 though the damages must 
be shown to be actual in order to support a recovery. 4 Inas- 
much, however, as it is often true that a judgment against the 
employee will fail to secure returns, while one against the em- 
ployer will have value, the consequence is that in such cases 
there is a condition in which one party can violate his contract 
without liability, while it is enforceable against the other. The 
practical effect of this condition is modified by the fact that the 
term of hiring is customarily indefinite and general and termin- 
able at the will of either party. Compulsory servitude, which is 
prohibited by the thirteenth amendment to the Constitution 
of the United States, would be too nearly approached by a con- 
struction of law that would compel service beyond a voluntary 
rendition of it; while to compel employment would not be 
allowed, since that would be an infringement on the freedom of 
contract, 5 which cannot be waived, even by contract. 6 

A peculiar provision found in the Field Code is one that seems 
to imply that a contract for two years or under can be enforced 

1 Thum v. Tloczynski, supra. * Iron & Steel Co. v. Nichols, supra. 

J Word v. Winder, 16 La. Ann. Ill ; Payne v. Western & Atlantic R. Co., 13 
Lea 507 (Tenn.) ; Hamblin o. Dinneford, 2 Edw. Ch. 533 (N.Y.). 

* Hasselman Printing Co. v. Fry, 9 Ind. App. 393, 36 N.E. 863. 
8 Reid Ice Cream Co. v. Stephens, 62 111. App. 334. 

• Hilton v. Eckersley, 6 Ell. & Bl. 47. 



THE CONTRACT OF EMPLOYMENT 15 

in the states adopting it, the law stating that, except in the 
case of apprenticeship, no contract can be enforced agaiDst an 
employee beyond the term of two years from the commencement 
of services under it. 1 This cannot be construed, however, as 
looking toward an enforcement of specific performance, which 
is prohibited by statute, 2 but only as setting a period to con- 
tracts giving rise to actions. It is not held to make the contract 
void as against the employer, but only to leave it to the election 
of the employee whether he will continue service thereunder. 
If he chooses to do so, he may also sue for the value of his 
services in an action on a quantum meruit, though the contract 
may be referred to by the employer as presumably fixing the 
value of the services contemplated. 3 

The unwarranted abandonment of a contract gives rise to the 
question of the recovery of unpaid wages earned by the employee 
before leaving service. Where the contract is entire, so that no 
part of it can be said to be completed before the entire work is 
finished, no recovery can usually be had. 4 This rule has been 
incorporated in statute law. 5 A contract for a fixed period, 
whatever its length, is an entire contract, and falls within the 
above rule. 6 The rigor of this rule has been objected to in 
favor of an equitable recognition of the value of the portion of 

1 Cal., Civ. Code, sec. 1980. See Appendix. 

1 Cal., Civ. Code, sec. 3390. 

» Stone v. Bancroft, 139 Cal. 78, 72 Pac. 717. 

'Hawkins v. Gilbert, 19 Ala. 54; Dugan v. Anderson, 36 Md. 667, 11 Am. 
Rep. 509 ; Goldstein v. White, 16 N.Y. Supp. 860 ; Davis ». Maxwell, 12 Mete. 
286 (Mass.) ; Dunn ». Moore, 16 111. 151. 

5 Ark. Dig. sec. 5028 ; Latham v. Barwick, 87 Ark. 328, 113 S.W. 646. 

«Hildebrand v. Art Co., 109 Wis. 171, 85 N.W. 268; Wright v. Turner, 1 
Stew. 29 (Ala.), 18 Am. Dec. 25 ; Isaacs v. McAndrew, 1 Mont. 437 ; McMillan v. 
Vanderlip, 12 Johns. 165 (N.Y.), 7 Am. Dec. 299. 



16 LAW OF THE EMPLOYMENT OF LABOR 

the services rendered, 1 and a more lenient view is taken in a 
number of jurisdictions, allowing the employee to recover the 
value of the labor performed, less any damages caused by his 
failure to complete his contract. 2 It is the general rule that 
where an entire contract is broken by the sickness or death of 
the employee, or by his discharge, whether for cause or otherwise, 
he is entitled to recover the contract wages for the time served, 
less any damages resulting from his own misconduct; 3 the 
same rule applies where the contract is severable, 4 and an or- 
dinary employment in which periodic payments are contem- 
plated has been held to be of this class. 5 In any case, wages 
paid before the breach cannot be recovered by the employer, 6 
nor can he refuse to pay a note given before the breach in pay- 
ment of wages. 7 

Section 9. Statutory Provisions for Enforcing Contracts. — 
Not being enforceable in equity, and entailing only liability in 
damages for its violation, the refusal or failure by an employee 
to fulfill the terms of his contract is not a criminal act, apart 
from statutory enactment, nor is it a tort. 8 A number of states, 
chiefly Southern, have laws relating to the enforcement of the 
labor contract, and providing for penalties for its violation. 
The Louisiana civil code, art. 2747, states that "A man is at 

1 Britton v. Turner, 6 N.H. 481. 

a Wheatly v. Miscal, 5 Ind. 142 ; Asher v. Tomlinson, 22 Ky. L. Rep. 1494, 
60 S.W. 714 ; Duncan v. Baker, 21 Kans. 99. 

8 Hildebrand v. Art Co., supra. 

<Tichenor v. Bruckheimer, 40 Misc. 194 (N.Y.) ; 'White t»7Atkins, 8 Cush. 
370 (Mass.). 

« Walsh v. New York <fc Ky. Co., 85 N.Y. Supp. 83. 

• Winn v. Southgate, 17 Vt. 355. 

» Thorpe v. White, 13 Johns. 53 (N.Y.). 

• Comerford v. Street Ry. Co., 164 Mass. 13, 41 N.E. 59. 



THE CONTRACT OF EMPLOYMENT 17 

liberty to dismiss a hired servant attached to his person or 
family, without assigning any reason for so doing. The servant 
is also free to depart without assigning any cause"; which is 
but a statement of the common law. 1 The next article provides, 
however, that " Laborers, who hire themselves out to serve on 
plantations or to work in manufactories, have not the right of 
leaving the person who hired them, nor can they be sent away 
by the proprietor, until the time has expired during which they 
had agreed to serve, unless good and just cause can be assign ed." 
In case of an unjustifiable breach, forfeiture of all wages earned 
during the expired portion of his service is prescribed, if the act 
is that of the employee ; or the forfeiture of the full wages for 
the term, if the act is that of the employer. If the employee is 
discharged for good cause, he is entitled to recover wages for 
the time served. 2 The law of Arkansas is practically the same 
as that of Louisiana. 3 

A form of legislation that has arisen in large part, no doubt, 
from local economic conditions of labor is one that has regard to 
contracts of employment where advances of money or supplies 
have been secured with fraudulent intent. These laws apply 
to goods advanced during the continuance of the contract as 
well as to those obtained at the time it is made. Thus in Ala- 
bama abandonment of the contract without repayment of such 
advances is punishable criminally as for the perpetration of a 
fraud by means of promises not intended to be kept. 4 An in- 
tent to defraud must be shown, a mere breach of the contract 

' Boyer v. W. U. Tel. Co., 124 Fed. 246. 
1 Nolan v. Danks, 1 Robinson 332 (La.). 

8 Dig. 1904, sees. 5027, 5028. See Latham r. Barwick, 87 Ark. 328, 113 
S.W. 646. 

4 Code of 1907, sec. 6845. 
C 



18 LAW OF THE EMPLOYMENT OF LABOR 

not being a crime ; x and it is insisted that " the criminal feature 
of the statute consists in the entering into a contract with the 
intent to injure or defraud the employer, and the refusal of the 
employee to perform the contract, with a like intent. 2 The 
statute provided that refusal or failure without just cause to 
perform the act or render th"e service agreed upon, or to refund 
the money or value of the property advanced, was prima facie 
evidence of fraudulent intent ; and this, with the other provi- 
sions of the statute, was held by the supreme court of the state 
to be constitutional. 8 On appeal to the Supreme Court of the 
United States, however, this provision of the law was held to be 
repugnant to the provisions of the thirteenth amendment to the 
Constitution of the United States, prohibiting involuntary ser- 
vitude, and to those of the peonage laws, 4 inasmuch as they 
deprived the defendant of his presumption of innocence, and 
exposed him to conviction for fraud upon evidence only of a 
breach of contract and a failure to repay advances. 5 

1 Ex parte Riley, 94 Ala. 82, 10 So. 528 ; Bailey v. State, 158 Ala. 18, 48 So. 498. 

2 Bailey v. State, supra; citing Dorsey v. State, 111 Ala. 40, 20 So. 629 and 
Mcintosh v. State, 117 Ala. 128, 23 So. 668. 

8 State v. Vann, 150 Ala. 66, 43 So. 357 ; Bailey v. State, 158 Ala. 18, 48 So. 
498 ; same case, 161 Ala. 78, 49 So. 886. * U. S. R. S., sees. 1990, 5526. 

» Bailey v. Alabama, 219 U.S. 219, 31 Sup. Ct. 145. "The fact that the labor 
debtor contracted to perform the labor which is sought to be compelled does not 
withdraw the attempted enforcement from the condemnation of the statute 
[prohibiting peonage]. The full intent of the constitutional provision could be 
defeated with obvious facility if, through the guise of contracts under which 
advances had been made, debtors could be held to compulsory service. It is 
the compulsion of the service which the statute inhibits, for when that occurs, 
the condition of servitude is created, which would be not less involuntary because 
of the original agreement to work out the indebtedness. The contract exposes 
the debtor to liability for the loss due to the breach, but not to enforced labor. 
The act of Congress deprives of effect all legislative measures of any state through 
which, directly or indirectly, the prohibited thing, to wit, compulsory service to 
secure the payment of a debt, may be established or maintained." 



THE CONTRACT OF EMPLOYMENT 19 

Other jurisdictions having laws of this tenor are Arkansas, 1 
Florida, 2 Georgia, 3 Louisiana, 4 Michigan, 5 Minnesota, 6 New 
Mexico, 7 North Dakota, 8 and South Carolina. 9 The laws of 
Michigan, Minnesota, and North Dakota seem to contemplate 
primarily the fraudulent procurement of transportation, though 
they include other forms of advances, and contain the provision 
making failure to repay prima facie evidence of fraud, thus 
bringing these laws within the strictures of the opinion of the 
Supreme Court in the Bailey Case. The charge had already 
been made against some of the laws of this class that they violate 
the national law prohibiting peonage, which is defined as a 
"status or condition of compulsory service, based upon the in- 
debtedness of the peon to the master." 10 The statute under 
discussion when this definition was given was an earlier one of 
Florida, and it was said by the Supreme Court of the United 
States that that which was contemplated by the law was com- 
pulsory service to secure the payment of a debt. This case was 
referred to in the course of an opinion in which a law of South 
Carolina n was declared unconstitutional by a Federal court as 
being in conflict with the thirteenth and fourteenth amend- 
ments of the Constitution of the United States, and laws made 
in pursuance thereof. 12 This statute was also held unconstitu- 
tional by the supreme court of the state of South Carolina in a 
case 13 in which the opinion was very full, and in which a 

1 Acts of 1907, No. 271. « Acts of 1906, No. 54. 7 Acts of 1905, ch. 37. 

2 Acts of 1907, ch. 5678. « Acts of 1903, No. 106. 8 Acts of 1907, ch. 208. 
" Acts of 1903, p. 90. « R.L. 1905, sec. 5187. 9 Acts of 1908, No. 494. 

10 Clyatt v. U.S., 197 U.S. 207, 25 Sup. Ct. 429. 

11 Crim. Code, sec. 357, as amended by acts of 1904, No. 243. 
» Ex parte Drayton, 153 Fed. 986. 

13 Ex parte Hollman, 79 S.C. 9, 60 S.E. 19. The dissenting opinion presents 
the economic reasons for laws of this class. 



20 LAW OF THE EMPLOYMENT OF LABOR 

lengthy dissenting opinion was also written. In declaring this 
law unconstitutional, the court reversed the position it had held 
in earlier cases, 1 taking the ground that the statute violated 
the right of citizens to be exempt from imprisonment for debt 
except in cases of fraud, as provided in the state constitution ; 
further, that it violated the thirteenth amendment of the Con- 
stitution of the United States, as its enforcement would lead to 
peonage or ift voluntary servitude; and the fourteenth amend- 
ment likewise, since it did not bear equally on the landlord and 
the laborer. The present law of South Carolina was enacted by 
the legislature of 1908 (Act No. 494), and is extended to include 
personal service of every kind, applying to employers who fail 
or refuse to receive and compensate personal service after con- 
tracting therefor, as well as to employees who fail or refuse to 
render such service. Fraud or malicious intent to injure is 
essential to the offense, the failure without sufficient cause to 
carry out the contract, to the injury of the other party, being 
prima facie evidence of fraud and malice. The law covers cases 
where advances are not received or promised, as well as others, 
though contracts based on debts incurred prior to the commence- 
ment of service thereunder are expressly declared null and void. 
In laws where the repayment of advances is considered, it is 
contended in their favor that it is not against the laborer's 
breach of contract that the penalty lies, but against a mis- 
demeanor, "as if he had stolen" the advanced property (Ala- 
bama) ; "he shall be deemed a common cheat and swindler' ' 
(Georgia); "shall be guilty of a misdemeanor," and be pun- 
ished by fine or imprisonment (Michigan and Minnesota), etc. 

1 State v. Williams, 32 S.C. 124, 10 S.E. 876 ; State v. Chapman, 56 S.C. 420, 
34 S.E. 961 ; State v. Easterlin, 61 S.C. 71, 39 S.E. 250. 



THE CONTRACT OF EMPLOYMENT 21 

It is claimed that the state has the right to penalize such breach, 
after the receipt of advances, as a punishment of fraud, and for 
the purpose of repressing fraudulent practices; and the laws have 
received judicial support on this ground. 1 The whole list of 
such laws apparently falls under the charge that was made 
against the Florida statute in the Clyatt case, above, — that 
their purpose is the compulsory payment of a debt, in which 
view they would come under the strictures of the same court 
set forth in another case, where it was said that a "mere statute 
to compel the payment of indebtedness does not come within 
the scope of police regulations." 2 Their effect is, at least, 
Ho expose the weak and unintelligent to oppression and in- 
justice at the hands of the powerful and unscrupulous, — to 
offer easy possibilities of misuse for the collection of debts and 
the enforcement of civil contracts without regard to the inten- 
tion of the defendant ' ; 3 and they cannot be looked upon as 
valid, in view of the pronouncement in the Bailey case. 4 

As a means to the same end of enforcing the performance of the 
labor contract, the Alabama legislature enacted a law 5 by which 
an employee under written contract for a specified time to work 
for another or to lease lands was prohibited from making a 
second contract without the consent of the first employer and 
without sufficient cause, to be adjudged by court, unless he 
should give notice of the preexisting contract. The punishment 
was a fine or penal service. This act was declared unconstitu- 

1 Vance v. State, 128 Ga. 661, 57 S.E. 889; State v. Murray, 116 La. 655, 40 
So. 930. 

2 Gulf, etc., R. Co. v. Ellis, 165 U.S. 157, 17, Sup. Ct. 257. 

3 Patterson v. State, 1 Ga. App. 782, 58 S.E. 284. 

4 Bailey v. Alabama, supra. 

6 Acts of 1900-1901, No. 483, 



22 LAW OF THE EMPLOYMENT OF LABOR 

tional, first by a Federal court, 1 and later by the supreme 
court of the state. 2 In the opinion of the court first named it 
was held that the act was a coercive weapon by which the 
employer would seek to compel the payment of a debt or the 
performance of a contract, in cases where only a suit for 
damages would lie ; while the state court condemned the law 
because of the restrictions it undertook to place on the right 
to make contracts of employment. 

The state of Mississippi has a statute 3 of like tenor with 
the above, enacted in 1900, which does not appear to have yet 
received consideration at the hands of the higher courts, but is 
doubtless likewise invalid. 

Employees engaged in the operation of railroad trains, and in 
Connecticut of street cars, who abandon the train or car at 
another point than its scheduled destination, are declared 
guilty of a misdemeanor in a number of states. 4 In some cases 
the law applies only where there is a combination to strike, and 
in some to locomotive engineers only. A more general statute 
applies to any person violating his contract when he knows or 
has reason to believe that the probable consequences of his 
breach will be the endangering of life, the causing of bodily 
injury, or the exposure of valuable property to destruction. 5 
A law of another state provides that an employee of any sort on 
a steamboat who abandons the boat before the termination of 
his contract or who refuses to perform the work for which he 

1 Peonage Cases, 123 Fed. 671. 2 Toney v. State, 141 Ala. 120, 37 So. 332. 

•Code of 1906, sec. 1147. 

* Conn., G.S. sec. 1293; Del., R. Code, p. 928; 111., R.S. ch. 114, sec. 108; 
Kans., G.S. sec. 2374; Me., R.S. ch. 124, sec. 6; N.J., Acts 1903, ch. 257, 
sec. 62 ; Pa., B. P. Dig. p. 533. 

» N.Y., C.L. ch. 40, sec. 1910 ; Wash., Acts 1909, ch. 249, sec. 281. 



THE CONTRACT OF EMPLOYMENT 23 

contracted shall not only forfeit all wages due, but shall also be 
liable for all damages caused by his act. 1 

Practically all the states have laws relating to apprentices 
and the regulation and enforcement of contracts with them. 
These laws generally prescribe the term of indenture, the duties 
of the master as to training, education, and the payment of the 
stipulated amount on the expiration of the term. The appren- 
tice is required to complete his term, and enticing or harboring 
him or otherwise interfering with the relation of apprenticeship 
is forbidden. These laws are practically obsolete at the present 
time, contracts between employers and unskilled men or boys 
learning trades being for the most part governed by the rules 
of law generally applicable to labor contracts. 

Section 10. Seamen. — A class of employees that stands on 
a different footing from any other is that of seamen, with ref- 
erence to whom it has been held that enforced contracts are per- 
mitted, the law as to involuntary servitude not being applicable. 2 
Many distinctive, legally recognized customs apply to them, as 
well as a special code of statutes, chiefly Federal, 3 since the con- 
trol of seamen belongs to Congress, being recognized as within 
the commerce clause of the Constitution. 4 These laws and 
customs relate to the nature of the contract, the term of service, 
the payment, assignment, etc., of wages, advance payments, 
and credits, the regulation of sailors' lodging houses, of shipping 
masters, quarters on board ship, rations, and many other details. 

The reason for these differences, which take seamen outside 
the control of the general laws affecting labor, is grounded in 

1 La., R.L. sec. 945. 

2 Robertson v. Baldwin, 165 U.S. 275, 17 Sup. Ct. 326. 

3 R.S., sees. 4501 to 4612, Comp. Stat. 1901, pp. 3061 to 3125. 
* Patterson ». The Eudora, 190 U.S. 169, 23 Sup. Ct. 821. 



24 LAW OF THE EMPLOYMENT OF LABOR 

ancient custom, and is defended on the view that the business 
of navigation requires some guaranties, beyond the ordinary 
civil remedies upon contracts, to effect their enforcement ; and 
further, because of the manner of their life by reason of which 
seamen are peculiarly exposed and subjected to the will and ca- 
price of the ship's officers on the one hand, and to designing and 
corrupt traders, etc., on land on the other. " Indeed, seamen 
are treated : by, Congress, as well as by the Parliament of Great 
Britain, as deficient in that full and intelligent responsibility 
for their acts which is accredited to ordinary adults, and as 
needing the protection of the law in the same sense in which 
minors and wards are entitled to the protection of their parents 
and guardians." 1 

On account of these differences, and their limited field of ap- 
plication, the conditions of employment of seamen will not be 
further considered. 

Section 11. Breach of Contract by the Employer. — As already 
stated, a contract of employment is enforceable against the 
employer to the extent that damages may be recovered for the 
breach thereof, and an employee under contract is entitled to 
recover the wages agreed upon where the employer refuses to 
accept services in accordance with the terms of the contract. 2 
If, however, the employee fails to show that he was ready and 
willing to render the services, or puts himself in a position where 
performance is not possible, he can enforce no claim ; 3 but 
tender of service after notice of discharge is not necessary. 4 

1 Robertson v. Baldwin, supra. 2 Costigan v. R. Co., 2 Den. 609 (N.Y.). 

a Polk v. Daly, 4 Daly 411 (N.Y.) ; Collins v. Hazelton, 65 Mich. 220, 31 N.W. 
843. 

4 Bacon v. New Home S/M. Co., 13 N.Y. Supp. 359 ; McMullen v. Dickinson 
Co., 63 Minn. 405,65 N.W. 661. 



THE CONTRACT OF EMPLOYMENT 25 

Of necessity, no question can arise as to the breach of a con- 
tract terminable at will. This rule has been carried so far as 
to hold that an employee who had left his place with his former 
employer and was proceeding under an agreement with a new 
employer and in compliance with his instructions, could recover 
no damages for the repudiation of the contract by the latter 
before the performance of any part of the contract, in the ab- 
sence of proof of a stipulated term of employment. 1 The better 
reason would seem to support the position that a breach without 
giving the employee a chance to begin work gives him a right 
to at least nominal damages ; since, even though the contract 
was for no definite time, it was for some time, and the actual 
performance of and payment for labor in some amount were 
contemplated. 2 

Where an employer breaks a contract of hiring for a specified 
time, the employee may wait until the expiration of the contract 
period and recover the amount of wages he would have earned 
but for his wrongful discharge, less what he earned or could 
have earned by employment elsewhere. 3 It is held by the weight 
of authority that the burden of showing that the plaintiff was 
able to procure other employment rests on the defendant em- 
ployer ; 4 though the question may be referred to the jury to 
decide from the circumstances as to the reasonable prospect of 

1 Savannah, etc., R. Co. v. Willett, 43 Fla. 311, 31 So. 246. See also Merrill 
v. W. U. Tel. Co., 78 Me. 97, 2 Atl., 847. 

2 Cronemillar v. Milling Co., 134 Wis. 248, 114 N.W. 432 ; Burtis v. Thompson, 
42 N.Y. 246 ; Utter v. Chapman, 38 Cal. 659. 

3 Winkler v. Racine Wagon, etc., Co., 99 Wis. 184, 74 N.W. 793 ; Efron v. 
Clayton, 35 S. W. 424 (Texas Civ. App.) ; Pierce v. R. Co., 173 U.S. 1, 19 Sup. 
Ct. 335 ; Cutter v. Gillette, 163 Mass. 95, 39 N.E. 1010. 

* Mathesius v. R. Co., 96 Fed. 792 ; Wilkinson v. Black, 80 Ala. 332 ; Hamilton 
t. Love, 43 N.E. 873 (Ind.) ; Maynard v. Corset Co., 200 Mass. 1, 85 N.E. 877. 



26 LAW OF THE EMPLOYMENT OF LABOR 

the discharged employee's procuring employment during the 
unexpired term of his contract. 1 In some states the burden is 
shifted to the plaintiff. 2 While it is the plaintiff's duty to use 
reasonable efforts to avoid loss by securing employment, he is 
not bound to accept new employment of a nature essentially 
different from that for which he was originally employed, 3 even 
from his former employer. 4 

Instead of .suing for the wages that would have been earned 
but for the breach of the contract, the remedy prescribed in some 
jurisdictions is an action for the damages caused by the breach. 5 
This suit may be brought either immediately or at the expira- 
tion of the term. 6 The measure of damages recoverable will 
usually be the contract price for the labor. 7 In jurisdictions 
where suits for wages are allowed, the employee may choose 
which of the two remedies he will pursue. 8 The rule in Louis- 
iana is to the effect that the right to recover wages for the un- 
expired term of the contract becomes vested at once on its 
unwarranted breach by the employer, and is not affected either 
by the acceptance of other employment or by a refusal to return 

1 Moore v. Central Foundry Co., 68 N.J.L. 14, 52 Atl. 292. 

* John C. Lewis Co. v. Scott, 95 Ky. 484, 26 S.W. 192 ; Hunt v. Crane, 33 
Miss. 669, 69 Am. Dec. 381. 

" Leatherberry v. Odell, 7 Fed. 641 ; Fuchs v. Koerner, 107 N.Y. 529, 14 N.E. 
445. 

* De Loraz v. McDowell, 68 Hun. 170, 22 N.Y. S. 606 ; Jackson v. School 
District, 111 Iowa 20, 77 N.W. 860. 

6 Weed v. Burt, 78 N.Y. 191 ; Stone v. Bancroft, 112 Cal. 653, 44 Pac. 1069. 

6 Hamilton v. Love, supra; Olmsted v. Bach, 78 Md. 132, 27 Atl. 501 ; James 
v. Allen Co., 44 Ohio St. 226, 6 N.E. 246. 

7 Lambert v. Hartshorne, 65 Mo. 549 ; Fuller v. Little, 61 111. 21 ; Hamilton 
v. Love, supra. 

* Fowler v. Armour, 24 Ala. 194 ; Mullaly v. Austin, 97 Mass. 30 ; Tyler 
Cotton Press Co. v. Chevalier, 56 Ga. 494; McLean v. Pub. Co. (N.D.), 129 
N.W. 93. 



THE CONTRACT OF EMPLOYMENT 27 

to work under the original contract ; x but this doctrine is 
grounded on the peculiar statute of the state, 2 and is not in line 
with the commonly accepted rules of law elsewhere. 

Where an employee had an option on permanent employment 
by reason of a contract entered into in consideration of for- 
bearing to sue for damages on account of an injury, and he is 
discharged without cause, he may sue for loss of earnings since 
his discharge, and for such earnings as would have been re- 
ceived in the future, less probable earnings in other employment. 3 

Section 12. Grounds for Discharge. — If the employer can 
successfully defend his course of action in discharging an em- 
ployee under contract, no damages will be allowed, and, apart 
from special provisions in the contract, the question whether 
the discharge was warranted or not is one for the jury. 4 A 
workman of adult age undertaking to do a piece of work is pre- 
sumed to be competent, and incompetency is a sufficient ground 
for discharge, whether he made representations as to his com- 
petency, 5 or whether it was merely presumed. 6 The word 
" competency," as used in this connection, is not to be taken in an 
absolute sense, however, and imports nothing more than reason- 
able skill. 7 Where an employer alleges incompetence as the 
ground for breaking a contract, the burden of proof is on him. 8 

1 Curtis v. A. Lehman Co., 115 La. 40, 38 So. 887 ; Camp v. Baldwin-Melville 
Co., 123 La. 257, 48 So. 927. 2 La., Civ. Code, art. 2749. 

3 Rhoades v. Chesapeake & O.R. Co., 49 W. Va. 494, 39 S.E. 209. 

4 Lippus v. Watch Co., 7 N. Y. Supp. 478 ; Echols v. Fleming, 58 Ga. 156. 

6 Mexican Amole Soap Co. v. Clark, 72 111. App. 655 ; Anstee v. Ober, 26 Mo. 
665. 

« Lyon v. Pollard, 20 Wall. 403 (U.S.) ; Keedy v. Long, 71 Md. 385, 18 Atl. 704. 

7 Crescent Horseshoe Co. v. Eynon, 95 Va. 151, 27 S.E. 935 ; Walton v. God- 
win, 58 Hun 87, 11 N.Y. Supp. 391. 

8 Mexelbaum v. Limberger, 78 Ga. 43, 3 S.E. 257 ; Franklin v. Lumber Co., 
66 W. Va. 164, 66 S.E. 225. 



28 LAW OF THE EMPLOYMENT OF LABOR 

An employee must, however, perform the duties for which he 
contracted with a degree of skill suited to the terms of his con- 
tract for the undertaking in hand, and he cannot, if discharged 
for incompetency, plead performance with ordinary skill. 1 

Where a contract is for a definite term, and a provision is 
made that the service shall be satisfactory to the employer, the 
decision of the latter is final if he is in good faith dissatisfied ; 2 
though in some cases it is held that the employer is the sole 
judge, and that no question of good faith can be raised. 3 This 
is opposed by the view held in a case involving the breach of a 
contract for permanent employment, conditioned on the em- 
ployee giving satisfaction to his foreman or superintendent ; it 
was here said that the burden of proof was on the employer to 
show good cause for the discharge, the appellate court refusing 
to set aside a verdict of the trial court in the discharged em- 
ployee's favor. 4 If the dissatisfaction is genuine, it is not 
material that it is not well founded ; 5 nor is the employer 
restricted, in his defense to an action, to the cause originally 
assigned as the reason for the discharge, but may adduce other 
reasons, 6 even if they were not known to him at the time of the 
discharge. 7 

One state undertakes to regulate discharges by providing that 

* Hatton v. Mountford, 105 Va. 96, 52 S.E. 847. 

» Koehler v. Buhl, 94 Mich. 496, 54 N.W. 157 ; Frary v. Rubber Co., 52 Minn. 
264, 53 N.W. 1156 ; Mackenzie v. Minis, 132 Ga. 323, 63 S.E. 900. 

a Allen v. Compress Co., 101 Ala. 574, 14 So. 362 ; Crawford v. Pub. Co., 163 
N.Y. 404, 57 N.E. 616. 

* Rhoades v. Chesapeake & O.R. Co., 49 W. Va. 494, 39 S.E. 209. 
B Mackenzie v. Minis, supra. 

8 Corgan v. Coal Co., 218 Pa. 386, 67 Atl. 655. 

» Von Heyne v. Tompkins, 89 Minn. 77, 93 N.W. 901 ; Loos v. Brewing Co., 
145 Wis. 1, 129 N.W. 645. See Wood's "Master and Servant," 2d ed., sec. 
121. 



THE CONTRACT OF EMPLOYMENT 29 

no employee between the ages of eighteen and sixty shall be 
discharged solely on account of age. 1 

In a general contract of hiring, without reference to the term, 
an agreement not to suspend or discharge without just and suf- 
ficient cause is not a restriction against discharge at the em- 
ployer's option ; 2 but if the employment is for a term, the mere 
fact of general misconduct on the part of the employee is not 
sufficient ground for discharge unless it is made to appear that 
it is misconduct in connection with his employment or is of such 
a nature as to prejudice his employer's interests. 3 Willful 
disobedience of reasonable and lawful orders, 4 or other viola- 
tion of the implied terms of the contract (seel), as well as 
violation of its express terms, will, if proved, generally be a 
sufficient defense for an employer in an action for damages for a 
breach of the contract. If it can be shown that the disobedi- 
ence was not of a nature to injuriously affect his employer, it has 
been held that the employee may still recover damages, as he is 
entitled to some measure of self-direction, 5 especially if skilled. 6 

It will be regarded as a breach of the contract by the employer 
if he violates its terms, express or implied, as by requiring other 
service than that contracted for ; 7 though it has been said that 
this alone will not amount to a breach, so long as the employee 
is permitted to perform the work for which he was hired ; 8 nor, 

1 Colo., Supp. sec. 2801c2. 

1 St. Louis, I. M. & S. R. Co. v. Mathews, 64 Ark. 398, 42 S.W. 902. 

' Child v. Boyd, etc., Mfg. Co., 175 Mass. 493, 56 N.E. 608. 

* Forsyth v. McKinney, 56 Hun 1, 8 N.Y. Supp. 561. 

6 Shaver v. Ingham, 58 Mich. 649, 26 N.W. 162; Hamilton v. Love, 
43 N.E. 873 (Ind.). 

6 Park v. Bushnell, 60 Fed. 583, 9 CCA. 138. 

7 Baron v. Placide, 7 La. Ann. 229. 

• Koplitz v. Powell, 56 Wis. 671, 14 N.W. 831. 



30 LAW OF THE EMPLOYMENT OF LABOR / 

on the other hand, can the employee's refusal to do work out- 
side the scope of his employment be made a ground for dis- 
charge. 1 Where the order to do the new work is coupled with 
a refusal to permit the performance of the work contracted for, 
there is a breach for which an action will lie ; 2 so also where the 
employer restricts the employee's rights under the contract, 3 or 
does other acts prejudicial to the employee's safety, morals, 
or reputation. The modification of the conditions of employ- 
ment is in effect making a new contract, and will involve the 
necessity of proving a sufficient consideration to support it. 4 
In case of a contract terminable at will, continuance in em- 
ployment with knowledge of the modification is considered an 
acceptance of the new terms. 5 Neither party can recover 
damages for the breach of a contract which contravenes public 
policy. 

Section 13. Other Methods of Dissolving the Contract Rela- 
tion. — Besides abandonment of the contract by the employee 
or its breach by the employer, ordinary contracts of employ- 
ment may be terminated, without entailing liability on either 
party beyond the payment of wages earned up to the time of 
dissolution, by mutual consent ; 6 by the expiration of the con- 
tract period, after which an employee seeking to recover wages 
for services rendered must show that the contract was renewed 
or extended, either expressly or by implication ; 7 by the death 

1 Loos v. Brewing Co., supra; Koplitz v. Powell, supra. 

1 Cooper v. Stronge & Warner Co., Ill Minn. 177, 126 N.W. 541 ; Marx v. 
Miller, 134 Ala. 347, 32 So. 765. 

8 Baldwin v. Marqueze, 91 Ga. 404, 18 S.E. 309. 

• Davis v. Morgan, 117 Ga. 504, 43 S.E. 732. 

• Norton v. Brookline, 181 Mass. 360, 63 N.E. 930. 

• Patnote v. Sanders, 41 Vt. 66, 98 Am. Dec. 564. 
» Ewing v. Janson, 57 Ark. 237, 21 S.W. 430. 



THE CONTRACT OF EMPLOYMENT 31 

or continued sickness of the employee ; 1 or by the occurrence 
of some event for which neither party is responsible, which 
makes the rendering of the service impossible or unreasonable 
and out of consonance with the original intent of the parties. 2 
The mere fact that an undertaking develops greater difficulties 
than were contemplated at the time the contract was entered 
into will not operate to dissolve it, however, 3 but for an 
employer to refuse to accept services except of a nature and 
under conditions violative of the terms of the contract is in 
effect a breach, 4 for which the employer is liable as above 
stated. (Sec. 11.) 

While the death or sickness of an employee, preventing the 
fulfillment of a contract, operates to terminate it, the assump- 
tion being that the contract is for his personal services and not 
for those of a substitute to be furnished by him or his personal 
representative, 5 the rule is not well fixed where the case is one 
of the death of the employer. Some authorities hold that the re- 
lation is so strictly a personal one that the death of the employer 
effects a dissolution, 6 while in other cases a contrary position 
has been taken. 7 Acceptance of services, either by a surviving 
partner or by the personal representative of the decedent, 

1 Dickey v. Linscott, 20 Me. 453, 37 Am. Dec. 66 ; Clark v. Gilbert, 26 N.Y. 
283, 84 Am. Dec. 189. 

2 Jones v. Judd, 4 N.Y. 411. 

3 Angle v. Hanna, 22 111. 429, 74 Am. Dec. 161 ; Carr v. Coal Co., 25 Pa. St. 
337. 

* Curtis v. A. Lehman Co., 115 La. 40, 38 So. 887 ; Marx v. Miller, 134 Ala. 347, 
32 So. 765. 

* O'Connor v. Briggs, 182 Mass. 387, 65 N.E. 836. 

* Lacey v. Getman, 119 N.Y. 109, 23 N.E. 426 ; Griggs v. Swift, 82 Ga. 392, 14 
Am. St. Rep. 176 ; In re McPhee's Estate, 156 Cal. 335, 104 Pac. 455. Cal. Civ. 
Code, sec. 1996. 

7 Phoebe v. Jay, 1 111. 268 ; Hill v. Robeson, 10 Miss. 541. 



32 LAW OF THE EMPLOYMENT OF LABOR 

would at least entitle an employee to a quantum meruit, 1 while 
other courts exact payment as provided for by the original con- 
tract. 2 The insolvency of an employer occurring after the 
formation of a contract does not put an end thereto, 3 nor does 
his insanity, 4 though as to matters of the latter nature, it may be 
said that considerations that are personal to individual em- 
ployers are of less general importance with the enlargement of 
the scope of j the operations of incorporated concerns in the 
conduct of business. 

Either custom or contract may provide for the rescission of the 
contract by notice. In such cases the law favors mutuality, so 
that employer and employee shall stand on an equal footing as 
to length of notice required and the forfeiture of wages, which 
is the usual penalty for the violation of the agreement. 5 A 
usual custom is one that requires notice for a length of time 
equal to the interval between pay-days. Where a rule of the 
employer is offered in evidence, it is for the jury to decide 
whether the employee was properly instructed as to such rule 
so as to be bound thereby. 6 Failure to give notice in accord- 
ance with the terms of a contract is such a violation thereof as 
to prevent the recovery of wages earned before the breach ; 7 
though it has been held that the abandonment of a contract 
without having given the agreed notice does not forfeit the 
wages earned, but only makes the employee liable for any dam- 

1 Louis v. Elfelt, 89 Cal. 547, 26 Pac. 1095. 

2 Toland v. Stevenson, 59 Ind. 485 ; Ferira v. Sayres, 5 Watts & S. 210 (Pa.), 
40 Am. Dec. 496. 

3 In re Silverman, 101 Fed. 219 ; Vanuxem v. Bostwick, 4 Pa. Cas. 532, 40 Am. 
Dec. 598. * Sands v. Potter, 165 111. 397, 56 Am. St. Rep. 253. 

6 Fawcett v. Cash, 5 B. & Ad. 904. 

• Diamond State Iron Co. v. Bell, 2 Marvel 303 (Del.), 43 Atl. 161. 

7 Naylor v. Iron Works, 118 Mass. 317. 



THE CONTRACT OF EMPLOYMENT 33 

ages caused by such abandonment. 1 The employer is liable 
in damages to an employee discharged without the agreed notice, 
the measure of damages being the wages the employee would 
have earned during the period of the notice, subject to the same 
rules as in the case of the violation of a contract for a fixed 
period ; 2 so also an employee quitting without notice in viola- 
tion of his agreement will be held to a contract to forfeit the 
wages for the period agreed upon. 3 

The matter of notice has been made the subject of legislation 
in a few states, the uniform provision of the laws being that the 
obligations as to time of notice and amount of forfeiture shall 
be reciprocal ; 4 while a Connecticut statute 5 prohibits the re- 
tention of wages because of failure to give notice, even where 
there was an agreement requiring notice to be given. 

Section 14. Clearance Cards. — The practice of asking for 
a clearance card or a letter of recommendation before engaging 
an applicant for employment does not, in the absence of custom, 
affect employers to the extent of requiring them to furnish such 
cards or letters to employees at the termination of their employ- 
ment. 6 If, however, there is a custom to give such cards, and 
the contract was made with mutual knowledge thereof, an ac- 
tion lies for the failure to give one on the discharge of an em- 
ployee. 7 The courts will take judicial cognizance of the fact 

* Hunt v. Otis Co., 4 Mete. 464 (Mass.). 

» Babcock v. Appleton Mfg. Co., 93 Wis. 124, 67 N.W. 33. 
3 Fisher v. Walsh, 102 Wis. 172, 78 N.W. 437; Willis v. Muscogee Mfg. Co., 
120 Ga. 597, 48 S. E. 177. 

* Me., R.S. ch. 40, sec. 51 ; Mass. Acts 1909, ch. 514, sec. 120 ; N.J., G.S. p. 
2351, Acts 1904, ch. 64, sec. 27 ; Pa., B. P. Dig. p. 2073 ; R.I., G.L. ch. 198, sec. 
25 ; Wis., A.S., sec. 1728m. B G.S. sec. 4694. 

* New York, C. & St. L. R. Co. v. Schaffer, 65 Ohio St. 414, 62 N.E. 1036 ; 
Cleveland, C. C. & St. L. R. Co. v. Jenkins, 174 111. 398, 51 N.E. 811. 

7 Hundley v. Louisville, etc., R. Co., 105 Ky. 162, 48 S.W. 429. 



34 LAW OF THE EMPLOYMENT OF LABOR 

that such a card is not necessarily a recommendation, but is 
rather a statement of the cause of the termination of the em- 
ployment, together with such other facts, whether favorable or 
unfavorable to the employee, as the employer may see fit to 
incorporate. 1 Malicious falsity of statement, or even known 
falsity without malice, would probably give a right of action 
against an employer making such statements as to the reason 
for discharge; at least where they result in preventing the em- 
ployee from securing employment. 2 

The legislatures of some states have undertaken to compel the 
furnishing of a statement of the cause of discharge, when re- 
quested by the employee. 3 In a case in which the constitution- 
ality of a statute of this character was challenged, the court held 
that as the desired credentials were intended not for public, but 
for private information, the law commanding that they be fur- 
nished was void, as violating the right of the liberty of silence, 
which is involved in the right of the liberty of speech ; saying 
that ''compulsory private discovery, even from corporations, 
enforced, not by suit or action, but by statutory terror, is not 
allowable where rights are under the guardianship of due pro- 
cess of law." 4 By like reasoning the supreme court of Kansas 
held that a similar law was unconstitutional ; 5 while a lower 
court of the state of Ohio held that failure to furnish an em- 
ployee with a written statement of the reason for his discharge 
did not make the employer liable in a civil action for the penalty 

1 Cleveland, C. C. & St. L. R. Co. v. Jenkins, supra; McDonald v. Illinois C. 
R. Co., 187 111. 529, 58 N.E. 463. 

* Hundley v. Louisville, etc., R. Co., supra. 

« Fla., G.L. sec. 2856 ; Ind., A.S. sec. 7078 ; Mo., Acts 1905, p. 178 ; Mont., 
A.C. sec. 3392 ; Ohio, Gen. Code, sec. 9012 ; Texas, Acts 1907, ch. 67. 

* Wallace v. Georgia, C. & N. R. Co., 94 Ga. 732, 22 So. 579. 

» Atchison, T. & S. F. R. Co. v. Brown, 80 Kans. 312, 102 Pac. 459. 



THE CONTRACT OF EMPLOYMENT 35 

provided for the violation of the statute, thereby making the 
law of no effect. 1 The Texas statute cited above was sustained 
as a constitutional enactment in a case in which the doctrine of 
the Wallace case was expressly rejected, and a judgment for 
damages against a railroad company for refusing to state fairly 
the reason for an employee's discharge affirmed. 2 Without dis- 
cussing the constitutionality of the statute, this judgment was, 
on appeal, reversed, since the employer need only state truly 
his reason for discharge, without detail as to circumstances, 
even though another person might draw a different conclusion 
therefrom as to the nature of the employee's conduct. 3 

In a few states the forgery of employers' certificates or clear- 
ance cards is specifically made an offense. 4 

Section 15. Procuring Breach of Contract. — If a third per- 
son unjustifiably interferes with a contract of employment, 
either by persuading an employee to break a known contract, or 
by procuring the discharge of an employee, the injured party 
has a right of action against such person for damages caused by 
his interference. 5 And this is true even though the contract was 
terminable at the option of the parties. 6 It is therefore of no 
advantage to the defendant to show that the employer himself 

1 Crall v. Toledo & O. C. R. Co., 7 C. C. Rep. 132. 

2 St. Louis S. W. R. Co. v. Hixon, 126 S.W. 338 (Tex. Civ. App.). 

3 Same case, 137 S. W. 343 (Tex.). 

* Ga., Acts 1899, p. 79 ; Minn., R.L. sec. 5053 ; Wis., A.S. sec. 4464b. 

B Lumley v. Gye, 2 El. & Bl. 216; Jones v. Leslie, (Wash.) 112 Pac. 81; 
Bixby v. Dunlap, 56 N.H. 456, 22 Am. Rep. 475 ; Walker v. Cronin, 107 Mass. 
555; Angle v. Chicago, etc., R. Co., 151 U.S. 1, 14 Sup. Ct. 240; Huskie v. 
Griffin, 75 N.H. 345, 74 Atl. 595. 

« Chipley v. Atkinson, 23 Fla. 206, 1 So. 934 ; Lucke v. Clothing Cutters, etc., 
77 Md. 396, 26 Atl. 505 ; Per contra, Holder v. Cannon Mfg. Co., 138 N.C. 308, 50 
S.E. 681. 



36 LAW OF THE EMPLOYMENT OF LABOR 

incurs no liability by discharging his employee ; * nor is it ma- 
terial, so far as the right of action of a discharged person is con- 
cerned, whether his discharge is procured by fraud or intimida- 
tion, or merely by successful persuasion. 2 

In an action by an employee to procure damages for causing 
his discharge, the declaration is usually made that it was will- 
fully and maliciously procured ; but this signifies nothing more 
than that the act was knowingly done to the apparent damage 
of the person discharged, and without lawful justification on the 
part of the instigator, i.e., as of competition in trade or employ- 
ment. 3 Where the defendant did nothing more than to an- 
swer an inquiry of an employer, stating such facts as led to the 
discharge of the plaintiff, no damages can be recovered. 4 So the 
mere imparting of information, in the absence of fraud or co- 
ercion, gives rise to no liability, though it in effect leads to a 
discharge. 5 The question of motive may be properly consid- 
ered, and may be decisive in a given case, 6 though the mere fact 
of bad intent does not make that actionable which does not 
amount to a legal injury. 7 Where, however, there is an improper 
and malicious motive, not only actual but also exemplary dam- 
ages may be recovered. 8 The communication to the employer 
need not be libelous per se, but if it is effective in procuring the 

1 Moran v. Dunphy, 177 Mass. 485, 59 N.E. 125. 

9 Moran v. Dunphy, supra. 

3 Haskins v. Royster, 70 N.C. 601, 16 Am. Rep. 780 ; London Guarantee, 
etc., Co. v. Horn, 206 111. 493, 69 N.E. 526. 

* Wabash R. Co. v. Young, 162 Ind. 102, 69 N.E. 1003. 

« Baker v. Insurance Co., 23 Ky. L. R. 1174, 1178, 64 S.W. 913, 967. 

6 Moran v. Dunphy, supra; Gibson v. Fidelity & Casualty Co., 232 111. 
49, 83 N.E. 539 ; Plant v. Woods, 176 Mass. 504, 57 N.E. 1011. 

i Allen v. Flood, 67 L.J.Q.B. 119. 

8 Gibson v. Fidelity & Casualty Co., supra. 



THE CONTRACT OF EMPLOYMENT 37 

discharge of the employee to his loss and damage, its publication 
is actionable. 1 Where, however, a discharge is procured on the 
basis of representations as to misconduct on the part of an 
employee, the charges being verified on investigation by the 
employer, the informant is not liable in damages, nor does the 
fact that he bore ill will to the discharged employee make him 
so. 2 In fact, some courts have denied that motive should be 
considered in connection with cases of this nature, 3 since if an 
act is injurious and unlawful, it is actionable, irrespective of 
motive, and whether malicious or not ; while if not unlawful or 
injurious, it is not actionable, however maliciously performed. 4 
In another case it was said that motive is immaterial where the 
acts considered are lawful, but if done without legitimate in- 
terests to protect, it is unlawful to maliciously injure another's 
business. 5 The differences would seem to be more apparent 
than real, though obviously some courts lay considerable stress 
on the question of motive ; but the rule seems well stated in a 
British case, in which it was said that an act which does not 
amount to a legal injury cannot be actionable because done 
with a bad intent. 6 

So if an employer brings action on the ground of enticement, 
he must show that the act was willful or intentional, and that it 
did injure, or was calculated to injure him, the actor being with- 
out a justifiable cause. Malice is said to be of the essence of 



1 Hollenbeck v. Ristine, 105 Iowa, 488, 75 N.W. 355. 
8 Lancaster v. Hamburger, 70 Ohio St. 156, 71 N.E. 289. 

3 Macauley u.Tierney, 19 R.I. 255, 33 Atl. 1 ; Bohn Mfg. Co. v. Hollis, 54 Minn. 
223, 55 N.W. 1119. 

* Payne v. Western & Atlantic R. Co., 13 Lea 507 (Tenn.). 

* Ertz v. Produce Exchange, 79 Minn. 140, 81 N.W.,737. 

* Stevenson v. Newnham, 13 C.B. 285 ; Allen v. Flood, supra. 



38 LAW OF THE EMPLOYMENT OF LABOR 

such an action, but the charge of malice is supported by show- 
ing that there was notice of the contract of employment, and 
that the employee has been persuaded not to enter into or con- 
tinue in the service contemplated thereby. The retention of 
an employee whose services are due to another under an existing 
contract, after knowledge of such contract, even though the 
second employer did not know at the time of the engagement 
that such a contract was in existence, is ground for action. 1 Con- 
tracts for piece work, where the work agreed for is abandoned 
in an incomplete condition, are on the same footing as con- 
tracts for a fixed term. 2 This principle is held also to apply 
to employees engaged for a season, as for the making of a crop. 3 
Where a contract has been entered into, it is not necessary for 
the maintenance of an action that the rendition of the service 
be actually begun ; 4 but there must be a knowledge of the 
contract, since intent to deprive the employer of service must 
be shown. 5 Where service is actually being rendered, there 
need not be a binding contract to support the action, since the 
employer is none the less entitled to at least the opportunity for 
the services of an employee merely at will 6 or one under a con- 
tract which could not be enforced against him, as of a minor, 
without being required to submit to officious interruptions by 
third parties. 7 But a mere attempt without damage will 
support no action. 8 Where the employee has violated a void- 

1 Butterfield v. Ashley, 6 Cush. 249 (Mass.) ; Campbell v. Cooper, 34 N.H. 49. 

2 Walker v. Cronin, 107 Mass. 555. 

3 Haskins v. Royster, 70 N.C. 601, 16 Am. Rep. 780 ; Daniel v. Swearengen, 
6 S.C. 297, 24 Am. Rep. 471. 4 Lumley v. Gye, 2 El. & Bl. 216. 

8 Butterfield v. Ashley, supra. 

« Salter v. Howard, 53 Ga. ; Frank v. Herold, 63 N. J. Eq. 443, 52 Atl. 152. 

7 Wood, M. & S., 2d ed., sec. 234 ; Keane v. Boycott, 2 H. Bl. 511. 

s Hool v. Dorroh, 75 Miss. 257, 22 So. 829. 



THE CONTRACT OF EMPLOYMENT 39 

able contract of his own volition, or left service under a contract 
at will, no action lies against a subsequent employer ; 1 so also 
if there is an agreement to employ at the expiration of a term of 
hiring, even though otherwise a renewal of the contract might 
reasonably be expected. 2 

Section 16. Statutes Forbidding Interference with Contracts. — 
The same economic conditions that led to the enactment of laws 
which attempt to prevent the violation of contracts, especially 
where advances are involved, doubtless give rise to laws di- 
rected against the enticement of employees who are under con- 
tract for a given time. 3 These aim their penalties at "any 
person who knowingly interferes with, hires, employs, entices 
away or induces" an employee to leave the service of another, 
or similar acts less particularly enumerated, and have been held 
constitutional. 4 The attempt entails the same penalty as the 
actual performance under the Alabama and Georgia statutes. 
The penalties are either fine or imprisonment, and may or may 
not be coupled with a liability for any advances made to the 
inveigled employee, or for damages suffered by reason of the 
commission of the prohibited act. The right of action in dam- 
ages is the only redress given in some states, thus making it only 
civilly and not criminally actionable. 

In so far as this action alone is contemplated, the statute only 

1 Langham v. State, 55 Ala. 114 ; Campbell v. Cooper, 34 N.H. 49. 

2 Boston Glass Co. v. Binney, 21 Mass. (4 Pick.) 425. 

3 Ala. Code, sec. 6850 ; Ark., Acts, 1905, No. 298 ; Fla., G.S., sec. 3232 ; Ga., 
Penal Code, sees. 121, 122. Act No. 390, Acts of 1901; Ky. Stat., sec. 1349; 
La., Acts, 1906, No. 54 ; Miss., Code, sec. 1146 ; S.C., Cr. Code, sec. 359 ; N.C., 
Revisal, sec. 3365 ; Tenn., Code, sec. 4337. 

4 Tarpley v. State, 79 Ala. 271, Murrell's Case, 44 Ala. 367; Hool v. Dorroh, 
75 Miss. 257, 22 So. 829. Hightower v. State, 72 Ga. 482 ; Per contra, Peonage 
Cases, 123 Fed. 671 (Ala. Stat.). 



40 LAW OF THE EMPLOYMENT OF LABOR 

enforces the common law right, and actual damage must still 
be shown. 1 Damages recoverable do not include debts due 
the employer or landlord. 2 The statute may prohibit the en- 
ticement of any one to leave his employer, or hiring him before 
the expiration of his contract, without the consent of the em- 
ployer. Under this law there is no offense where the employee 
has not actually entered on the service. 3 On the other hand, a 
second employer has been held liable for employing one before 
the expiration of his contract, regardless of the fact that the 
employee had already broken his contract, 4 the statute prohibit- 
ing such employment without the former employer's consent. 
This agrees with the doctrine of the case at common law of 
Butterfield v. Ashley, supra. In other cases 5 it was held that 
there was no ground for criminal action for the mere employ- 
ment of one who had left his former master. A statute of the 
United States on this subject makes it an offense to procure or 
entice any artificer or workman employed by the United States 
in any arsenal or armory to depart from his work during the 
term of his contract of employment, or, after notice of such 
contract, to retain, hire, or conceal such workman. 6 It is ob- 
vious that such statutes must be construed strictly according 
to their language, so that no generally applicable rule can be 
laid down. 

The interference may be prohibited no less for the safety of 

1 Hool v. Dorroh, supra. 

2 Chrestman v. Russell, 73 Miss. 452, 18 So. 656. 
> Hendrix v. State, 79 Miss. 368, 30 So. 708. 

* Armistead v. Chatters, 71 Miss. 509, 15 So. 39. See also Tarpley v. State, 
supra. 

6 Jackson v. State, 16 So. 299 (Miss.) ; Morris v. Neville, 79 Tenn. (11 Lea) 
271. 

• 35 Stat. 1097, Comp. Stat. Supp. p. 1404. 



THE CONTRACT OF EMPLOYMENT 41 

person and property than for the sake of procuring the comple- 
tion of a labor contract as ordinarily understood. Laws of this 
sort are to be found in connection with mine regulations, for- 
bidding the intimidation of or the interference with hoisting 
engineers ; l or with the performance of the duties of railroad 
employees, 2 or of employees of other quasi-public corporations. 3 

The giving of gifts or gratuities to an employee with intent to 
influence him in relation to his employer's business, or the 
acceptance by employees of such gifts is prohibited by statutes 
of recent enactment in a number of states ; 4 so also of bonuses 
or discounts to employees who purchase supplies or materials 
for their employers, under most of the laws cited; the same 
prohibition may be applied to the giving or receiving of tips in 
hotels or on common carriers. 5 A dealer allowing an employee 
a discount in violation of such a statute cannot recover any- 
thing on his contract, the entire contract being made void by 
the illegal act of granting discount. 6 

While these statutes are mentioned here on account of their 
close relation to each other, it is clear that they are not all 
designed strictly to prevent interference with employment, but 
to protect in a manner the financial interests of the employer 
and of the public. 

Where intimidation is practiced in the interference, not only 
is there civil liability, but such conduct is declared a penal offense 

1 Ala., Code, sec. 1029 ; Ind., Acts 1905, ch. 50, sec. 10. 

* Del., R.C. p. 928 ; 111., R.S. ch. 114, sec. 109 ; Kans., G.S. sec. 2375. 
8 Me., R.S. ch. 124, sec. 9. 

* N.J., Acts 1909, ch. 284 ; Wash., Acts 1909, ch. 249, sees. 426, 427 ; Conn., 
Acts 1905, ch. 99 ; Iowa, Acts 1907, chs. 183, 184 ; N.Y., C.L. ch. 40, sec. 439. 

5 Wash., Acts 1909, ch. 249, sees. 439, 440. 

* General Tire Repair Co. v. Price, 115 N. Y. Supp. 171. 



42 LAW OF THE EMPLOYMENT OF LABOR 

by the statutes of a number of states. Inasmuch as this phase 
of the question is frequently introduced into cases involving the 
activities and rights of strikers, its discussion will be deferred 
until the subject of labor organizations is taken up. 

Section 17. Right of Employer to Recover for Injuries to 
Employee. — A doctrine that is obviously rooted in the older 
view of close personal relationships is one that gives the em- 
ployer a right of action against a third person who injures his 
employee in such wise as to deprive the employer of his ser- 
vices. 1 The employer's right to recover does not interfere with 
the employee's right to sue the same party for damages for such 
personal injuries as he may have received. 2 This doctrine, like 
that which allows a suit by an employer for the seduction of 
a female employee 3 or for libel injuring the employee's character, 4 
is grounded on the view that the employer has an interest or 
property in the services of one in his employment; so that 
where he is deprived of them, or their value is diminished, the 
employer is entitled to redress, actual loss being necessarily 
proved to support an action. 5 

A statute that may be noticed under this general head is one 
that gives employers a right of action against persons selling 
liquor to employees, producing intoxication and consequent 
damage to the employer. 6 Such laws may or may not require 
previous notice not to sell ; they are to be strictly construed, 

1 Woodward v. Washburn, 3 Den. 369 (N.Y.) ; McCarthy v. Guild, 12 Mete. 
291 (Mass.). 

2 Rogers v. Smith, 17 Ind. 323. 

3 Furman v. Applegate, 23 N.J.L. 28; Nickelson v. Stryker, 10 Johns. 115 
(N.Y.) ; Hewitt v. Prime, 21 Wend. 79 (N.Y.). 

4 Riding v. Smith, 13 Albany L. J. 441. 

6 Fluker v. R. Co., 81 Ga. 461, 8 S.E. 529. 

6 Wash., A.C. sec. 2945 ; Mass., R.L. ch. 100, sec. 63. 



THE CONTRACT OF EMPLOYMENT 43 

and where they give a right of action for damages only, no other 
proceedings can be had under the statute, as by way of injunc- 
tion to abate a nuisance, since the employer has no such prop- 
erty in his workmen as to entitle him to a writ against one 
keeping open a place to which they voluntarily resort. 1 

Section 18. Civil Rights of Employees. — A majority of the 
states of the Union have enacted laws whose object it is to pro- 
tect workmen in their contracts of employment while exercising 
their rights as citizens. Such laws may be broad enough in 
their terms to prohibit employers from interfering with their 
employees in the exercise of "any natural right or any right or 
privilege of citizenship;" 2 or they may, as is most frequently 
the case, direct their prohibitions against interferences with the 
exercise of the right to vote, either by demanding an inspection 
of the employee's ballot, 3 or by printing on the pay envelopes 
in use the names of candidates, or mottoes, arguments, or 
threats intended to influence the political action of employees, 
or the posting of any handbill or notice stating that, in case of 
the success of any particular candidate or party, the establish- 
ment will close. 4 Threats of dismissal or reduction of wages on 
account of an employee's vote, 5 or interfering with his candi- 
dacy for office, 6 or otherwise attempting to influence his action 
may also be made an offense. One state prohibits the appoint- 
ment of an employer, manager, or foreman of railroad, mining, 

1 Northern P. R. Co. v. Whalen, 149 U.S. 157, 13 Sup. Ct. 822. 

J Minn., R.L. sec. 5173. 

3 Ala., Code, sees. 6804, 6805. 

* Cal., Penal Code, sec. 59 ; N.Y., C.L. ch. 40, sec. 772 ; S.D., Pen. Code, 
sec. 62. 

6 Conn., G.S. sec. 1700; Idaho, Pen. Code, sec. 4585; Ind., A.S. sec. 2341 ; 
Ky. Stat. sec. 1574A. 

•Wyo., R.S. sec. 2523. 



44 LAW OF THE EMPLOYMENT OF LABOR 

or manufacturing work carried on in the precinct, as judge, 
clerk, or watcher at the polls in any election. 1 Many of these 
laws provide that time to vote shall be allowed employees, 
either a fixed number of hours or a half day ; or the day of 
election may be declared a legal holiday. 

Employers are forbidden by the laws of a few states to dis- 
charge employees on account of their membership in the Na- 
tional Guard, or to refuse them permission to drill or perform 
active service when ordered out. 2 Interference with such mem- 
bers in their employment, or with their employers in their busi- 
ness may likewise be forbidden; also discrimination against 
such workmen by labor organizations on account of their 
membership. 3 

i Colo., A.S. Supp., sees. 1625wl/8, 1625wl/4. 

2 Kans., G.S., sec. 4058 ; Wash., Acts 1909, ch. 134, sec. 69. 

• Cal., Pen. Code, sec. 421 ; 111., Acts 1909, p. 437 ; Me., Acts 1909, ch. 206, 
sec. 116; Mich., Acts 1909, No. 194; N.Y., C.L. Ch. 40, sees. 1480, 1481; 
Wash., Acts 1909, ch. 134, sees. 67, 68. 



CHAPTER II 

WAGES 

Section 19. Definition. — Wages are, in both common and 
legal language, the compensation paid or to be paid for services, 
whether computed by the day, week, or month, or by the piece 
or job. Payment for piece or job work is frequently spoken of 
as earnings, but it differs in no sense from payment computed by 
time, the words "earnings" and "wages" being often used together 
in statutes on the subject. In mining and elsewhere, much of 
the work is done by what is called contracting, one man being 
paid by the ton or other quantity, he paying a helper or helpers 
a fixed sum daily or at a given rate per unit used ; but the sums 
received by the different workmen are alike wages ; l so also 
where a group of men are employed in the joint production of 
a designated unit, and the payment therefor is divided among 
them fractionally or by a percentage. The profits of con- 
tractors where agreements are made for the performance of 
work involving individual direction and the employment and 
guidance of subordinates, as in the erection of a building or the 
construction of public works, are not classed as wages. 2 The 
word "salary" is also said by some courts to be synonymous with 
wages, 3 though in others it is held to mean a larger compensa- 

1 Coal Co. v. Costello, 33 Pa. (9 Casey) 241. 

2 Heard v. Crum, 73 Miss. 157, 18 So. 934 ; Lang v. Simmons, 64 Wis. 525, 25 
N.W. 650. 3 Bovard ». Ford, 83 Mo. App. 498 ; Com. v. Butler, 99 Pa. 535. 

45 



46 LAW OF THE EMPLOYMENT OF LABOR 

tion for more important services, 1 or payment for services other 
than of a manual or mechanical kind. 2 Salaries of public 
officers are not exempt from garnishment under laws exempt- 
ing wages. 3 

No wages can be recovered for services rendered in violation 
of the provisions of the law. Thus an engineer working without 
a license when the law requires one can recover nothing in a suit 
for wages ; 4 nor can one who works on Sunday where the law 
prohibits such labor ; 5 or who works more than eight hours in 
violation of statute. 6 

The payee must in general be either the person rendering the 
service or his legal representative, though a few states have 
laws for the payment of wages to the widow, minor children, 
or other heirs of a deceased employee without the formality 
of administration, but only in case the debt does not exceed the 
sum fixed by the statute, this amount varying in different states 
from seventy-five to two hundred dollars. 7 Provisions as to 
the rights of assignees, and other creditors, and of married 
women and minors are found in the statutes of nearly every 
state, and will be noted under their various headings. Where 
wages are paid in violation of the provisions of law applicable 
in the case, the employer cannot plead such unlawful payment 

1 Meyers v. City of New York, 69 Hun 291, 23 N. Y. Supp. 674. 

2 In re Stryker, 158 N.Y. 526, 53 N.E. 525. 

3 McLellan v. Young, 54 Ga. 399, 21 Am. Rep. 276 ; Thomas v. Walnut 
Land, etc., Co. 43 Mo. App. 653. 

* The Pioneer, Deady 72, Fed. Cas. No. 11,177. 

B McGrath v. Merwin, 112 Mass. 467, 17 Am. Rep. 119; Carson v. Calhoun, 
101 Me. 456, 64 Ati. 838. 

6 Short v. Min. Co., 20 Utah 20, 57 Pac. 720. (Suit was for pay for overtime, 
work only.) 

7 Ala., Code, sec. 4201; Ga., Acts 1901, p. 60; Miss., Code, sec. 2133; Pa., 
Acts 1907, No. 162. 



WAGES 47 

as a defense in an action to recover wages earned. Thus in 
the case of a law prohibiting the payment of seamen's wages 
in advance, 1 payments made in violation thereof were not 
allowed as a set-off in an action to recover the whole amount of 
wages earned under the contract. 2 

Section 20. Rate. — The rate of wages is usually fixed by 
agreement, but where no agreement is made, the law implies 
a promise to pay as much as the services are reasonably worth, 
or a quantum meruit. 3 Where a rate is agreed upon, no action 
on a quantum meruit can be brought, 4 and if it can be shown in 
an action of this sort that a rate was actually agreed upon, that 
rate will control the decision of the court. 5 On the other hand, 
a suit on contract cannot secure a recovery on a quantum meruit. 6 
If the price is agreed upon after entrance on service, the agreed 
rate relates back to the beginning of such service. 7 Changing 
the rate of wages is in effect making a new contract, so that the 
courts will sanction neither a settlement by proffer of a lower 
rate than the one agreed upon, 8 nor a demand for a higher rate 
on the ground that the work was worth more, 9 unless mutual 
consent is properly shown. Thus, though competence is assumed 
and an employer may rightfully discharge an employee for in- 

1 U.S., 30 Stat. 763. 

2 The Alexander M. Lawrence, 101 Fed. 135. 

3 Henderson Bridge Co. v. McGrath, 134 U.S. 260, 10 Sup. Ct. 730 ; Dubois v. 
Del. & H. Canal Co., 4 Wend. 292 (N.Y.). 

4 Clark v. Smith, 14 Johns. 326 (N.Y.). 
* Rubin v. Cohen, 113 N.Y. Supp. 843. 

e Birlant v. Cleckley, 48 S.C. 298, 26 S.E. 600. 

7 Royal v. Grant, 5 Ga. App. 643, 63 S.E. 708. 

8 Hackman v. Flory, 16 Pa. St. 196 ; Pennington v. Lumber Co., 122 S. W. 
923 (Tex. Civ. App). 

9 Snyder v. Wright, 4 E. D. Smith 367 (N.Y.) ; Wallace v. Floyd, 29 Pa. St. 
184. 



48 LAW OF THE EMPLOYMENT OF LABOR 

competence, he cannot refuse to pay wages at the agreed rate 
on the plea that the employee was unskillful, as his retention 
in service will be construed as a waiver of the employer's right 
to discharge. 1 Prior notice of reduction of wages may be re- 
quired by statute, 2 though in view of the rule of law that an 
agreed rate controls until a change is assented to by both par- 
ties, the importance of such a law does not seem to be great. 

Rates of wages have been fixed by statute in a few states 
though only in the matter of employment on public works, 3 
or in the printing offices of the state or the United States. 4 
Besides these, a Virginia statute declares that a reasonable sum 
shall be paid for services in salvage, and in case of the failure 
of the parties interested to agree, they shall each choose an 
arbitrator, and a state official shall choose a third, this board to 
determine the rate. 5 

The state of Massachusetts is the first to look seriously toward 
the regulation of wages in private undertakings, having provided 
for a commission to study the matter of the wages of women 
and minors, with a view to fixing minimum rates of wages for 
such classes of employees. 6 Since laws regulating the hours of 
labor of such persons are valid, there appears to be at least an 
open field for an attempt to regulate their wages also, though 
the chief reason for limiting the hours of labor of females, i.e., 

1 Clark v. Fensky, 3 Kans. 389. 

2 Mo., R. S. sec. 1009 ; Texas, R. S., sec. 4544 ; U.S., 30 Stat. 424, sec. 9, C.S., 
p. 3205 (applies only to receivers of railroads appointed by Federal courts). 

8 Cal., Sims' Gen. Laws, No. 2894 ; Del., Acts 1903, ch. 410 (City of Wilming- 
ton only) ; Nebr., Acts 1903, ch. 17 (cities of first class) ; Nev., Acts 1907, 
ch. 202 ; N.Y., Con. L., ch. 31, sec. 3. 

* Cal., Sims' Pol. Code, sec. 531 ; Kans., Acts 1907, ch. 393 ; U.S., 28 Stat. 
607, 31 Stat. 643. 

1 Code, sec. 1946. 6 Resolve approved May 11, 1911. 



WAGES 49 

on account of physiological differences between males and fe- 
males, cannot be cited as supporting a wage law. 

Laws regulating wages on public works may fix an absolute 
minimum rate, or they may provide that current or prevailing 
rates shall be paid. A law of Indiana 1 fixing a minimum rate 
was held to be unconstitutional, since it interfered with the free- 
dom of counties, cities, and towns, which were held to be cor- 
porations with a right to contract in matters affecting their 
own interests ; and also burdened the citizen by taking his 
property without due process of law. 2 A similar law of New 
York 3 was upheld in the case of a direct employee of the 
state under a superintendent of one of its undertakings, the 
court finding no express or implied restriction in the constitu- 
tion of the state upon the power of the legislature to fix and 
declare the compensation to be paid for labor or services per- 
formed upon the public works of the state, declaring further 
that wages so fixed cannot be reduced by the officer under 
whom any employee might work. 4 A subsequent law of this 
state directing contractors as well as public officers to pay 
current local rates of wages 5 was declared unconstitutional as 
exceeding the power of the legislature in the matter of both 
public and private contracts, the interference with the rights 
of both the city and the contractor being condemned. 6 Later 
this decision was modified to the extent of holding the law ap- 
plicable to contracts in which the city was directly interested, 
making the law invalid in its application to contractors only. 7 

1 Acts 1901, p. 282. 

2 Street v. Varney Elec. Supply Co., 160 Ind. 338, 66 N.E. 895. 

8 Acts 1889, ch. 380. * Clark v. State, 142 N.Y. 101, 36 N.E. 817. 

6 Acts 1897, ch. 415. • People v. Coler, 166 N.Y. 1, 59 N.E. 716. 

7 Ryan v. City of New York, 177 N.Y. 271, 69 N.E. 599. 

E 



50 LAW OF THE EMPLOYMENT OF LABOR 

Following these decisions came the adoption of an amend- 
ment of the constitution of the state, empowering the legislature 
to regulate the conditions of employment on the public works 
of the state, whether directed by the state or a subdivision 
thereof, or by a contractor. The law previously declared un- 
constitutional was thereupon reenacted, 1 and has been sus- 
tained by the court of last resort of the state. 2 The view of 
the Supreme Court of the United States, laid down in a case 
where the question turned, not on rates of wages, but on the 
hours of labor, holding that municipalities are but the agents, 
of the state for the conduct of local affairs, and are properly 
subject to such regulations as the state may see fit to prescribe, 
would sustain such laws as the above generally. 3 

Section 21. Deductions from Wages. — The discounting of 
time checks by the employer issuing them, or by his agent, may 
be prohibited by statute, 4 or the amount that may be deducted 
for payments made in advance of the regular payday limited. 5 
The willful refusal to pay a wage debt with the intent of obtain- 
ing a discount thereon may be punished as a misdemeanor, 6 
or as a crime. 7 

Deductions by way of fines for imperfect work, 8 or "for any 
reason," 9 may be prohibited or restricted. But a law that 
prohibits the imposition of a fine or the withholding of wages 
on account of imperfections, unlawfully interferes with the right 
to make reasonable contracts ; 10 though if it allows for fines only 

1 Const, art. 12, sec. 1, Am. 1905 ; Acts 1906, ch. 506. 

2 People ex rel. Williams Eng. & Cont. Co. v. Metz., 193 N.Y. 148, 85 N.E. 
1070. 3 Atkin v. Kansas, 191 U.S. 207, 24 Sup. Ct. 124. 

* Nev., Acts 1905, ch. 106. B Ark., Dig. sec. 5383. 

6 Mont., Acts 1907, ch. 144. 7 Minn., R.L., sec. 5096. 

8 Mass., Acts 1909, ch. 514, sec. 114. 9 Ind., A.S. sec. 7059b. 

io Commonwealth v. Perry, 155 Mass. 117, 28 N.E. 1126. 



WAGES 51 

in accordance with the terms of a prior agreement or contract, 
it is valid. 1 Within the purpose of this class of laws are those 
that prohibit the screening of coal before it is weighed, 2 the loss 
of coal through the screen being regarded as causing an unjust 
loss to the miner whose contract calls for payment by the weight 
of the coal mined. Such laws have been held to be constitutional, 
as within the police power of the state, 3 though the contrary view 
has also been expressed, the laws being condemned as interfering 
unduly with the right to contract freely. 4 

The compulsory remission of any part of an employee's wages 
for the maintenance of hospitals, libraries, or for other benefits 
or social purposes is prohibited in some states. 5 Though it is 
unlawfurfor an employer thus to withhold his employee's wages, 
he is not by that fact relieved from his obligation to supply 
hospital treatment, according to his contract, to an injured 
employee whose wages have been thus retained. 6 

Section 22. Time of Payment. — The time of payment of 
wages is usually fixed by the contract of employment, or by 
custom, which is in effect the same thing. An agreement to do 
a piece of work, or to work for a stated period, for a certain sum, 
no time of payment being set, is construed to be a contract to 
pay only when the labor is completed or the contract is other- 
wise terminated. 7 If monthly payments are agreed to, wages 

« Gallagher v. Mfg. Co., 172 Mass. 230, 51 N.E. 1086. 

" Ark., Acts 1905, No. 219 ; Colo., A.S., sec. 3204k ; Iowa, Code, sec. 2490, etc. 

* McLean v. State, 211 U.S. 535, 29 Sup. Ct. 206 ; State v. Peel Splint Coal Co., 
36 W. Va. 802, 15 S.E. 1000. 

* Ramsey v. People, 142 111. 380, 32 N.E. 364 ; In re House BUI No. 203, 21 
Colo. 27, 39 Pac. 431. 

« Ind., A.S. sec. 2300; Md., P.G.L. art. 23, sec. 297; Mich., C.L. sec. 
11400, 11401. 6 Wabash R. Co. v. Kelley, 153 Ind. 119, 52 N.E. 152. 

* Thompson v. Phelan, 22 N.H. 339 ; Thorp v. White, 13 Johns. 53 (N.Y.). 



52 LAW OF THE EMPLOYMENT OF LABOR 

are due for full months as they are earned. For fractions of 
a month no recovery of wages can be had unless there was a 
wrongful discharge, when the employee may sue, not for wages 
earned, but for damages caused by the discharge. 1 (See sections 
8, 11.) 

Numerous statutes have been enacted regulating the time o\ 
payment of wages, some legislatures prescribing a monthly pay- 
day, 2 others semi-monthly, 3 bi-weekly, 4 or even weekly 5 pay- 
days. These laws may apply to all employers of labor, cor- 
porate or individual, 6 to corporations only, 7 or to designated 
classes of employers, as operators of mines, 8 mines and fac- 
tories, 9 or to employers having in their service more than a 
designated number of laborers. 10 

Courts have upheld the constitutionality of a law that applied 
only to designated classes of employers, 11 or to corporations 
only, 12 as well as a law of general application. 13 In the New 
York case cited, though the law uses the words, "each and 
every employee," it was construed to apply only to manual 
laborers. 

1 Walsh v. New York & Ky. Co., 85 N.Y. Supp. 83. 

2 Ariz., Pen. Code, sec. 615 ; Va., Code, sec. 3657d. 

3 Colo., Supp., sec. 2801ol (except railroads which must pay monthly) ; Iowa, 
Code, sec. 2490 ; Ky., Stat., sec. 2739A ; Pa., B.P.Dig. p. 2077. 

* Ind., A.S. sec. 7065 ; Me., R.S. ch. 40, sec. 57 ; N.J., Acts 1899, ch. 38. 
6 Conn., G.S. sec. 4695 ; Kans., G.S. sec. 1295 (other than railroad and farm- 
ing corporations) ; Mass., Acts 1909, ch. 514, sec. 112. 

6 Ariz., Mass. (practically all but farm labor), N.J. (same as Mass.). 

7 Colo., Conn., Kans., R.I. 8 Iowa, Ky., Wyo. 
9 Ind., Pa. (by construction), Va. 10 Me., Ky. 

11 Hancock v. Yaden, 121 Ind. 366, 23 N.E. 253 ; Lawrence v. Rutland R. Co., 
80 Vt. 370, 67 Atl. 1091. 

" State v. Browne & Sharpe Mfg. Co., 18 R.I. 16, 25 Atl. 246 ; People v. City 
of Buffalo, 57 Hun 577, 11 N. Y. Supp. 314. 

is Com. v. Dunn, 170 Mass. 140, 49 N.E. 110. 



WAGES 53 

On the other hand, a law requiring a monthly payday was 
held to restrict the constitutional right of employers and em- 
ployees to contract freely as to the terms and times of pay- 
ment ; l though it was said in a very recent case, in which the 
constitutionality of a law requiring railroads to pay their em- 
ployees semi-monthly was under consideration, that the state 
had an interest in the welfare of its citizens which would be 
served by the frequent payment of wages so that workmen 
receiving small wages might be better able to make cash pur- 
chases of the necessaries of life ; and that the workman and a 
corporate employer do not stand, in the matter of making con- 
tracts, on an equal footing, so that the state might properly act 
in the manner indicated so as to in part remove the existing 
inequality. 2 In another state a law requiring weekly pay- 
ments of the full amount of wages due was held not to be a 
valid exercise of the police power, 3 and obviously a law of like 
tenor, but applying only to companies, corporations, and as- 
sociations, and not to individual employers, and also discrimi- 
nating between manual laborers and other employees, would be 
found unconstitutional by a court holding such views of the 
limits of the police power. 4 

Falling within the purpose of the laws of this class to procure 
prompt payment of wage debts are laws directing that the wages 
earned by discharged employees shall be paid them at the time 
of discharge without reference to the date of the customary pay- 

i Johnson v. Goodyear Min. Co., 127 Cal. 4, 59 Pac. 304. 

1 New York Central, etc., R. Co. v. Williams, 118 N. Y. Supp. 785, 64 Misc. 
Rep. 15 ; affirmed, 199 NY. 108, 92 N.E. 404. 

3 Republic Iron & Steel Co. v. State, 160 Ind. 379, 66 N.E. 1005 ; Braceville 
Coal Co. v. People, 147 111. 66, 35 N.E. 62. 

* Toledo, etc., R. Co. v. Long, 169 Ind. 316, 82 N.E. 757. 



54 LAW OF THE EMPLOYMENT OF LABOR 

day. 1 Some of these laws make the same provision for em- 
ployees voluntarily leaving service as for those discharged. 
The act of the Oregon legislature to this effect requires three 
days' notice of intention to leave, and excepts strikers from the 
class of employees benefited, unless the regular payday falls 
more than thirty days after the occurrence of the strike. Laws 
of this class are constitutional, 2 at least in their application to 
corporations, though they may be regarded as infringing on the 
constitutional rights of persons. 3 They do not interfere with 
the employer's right to claim offsets for damages caused by the 
employee's failure to fulfill his contract. 4 A penalty of an added 
percentage, or of the continuance of wages for a limited time, 
where the employer fails to comply with the statute, may be 
provided for ; 5 a penalty may also be allowed for the deten- 
tion of wages, without regard to the termination of employ- 
ment ; 6 this provision has been declared valid, 7 though the 
contrary has been held on the ground that the law does not 
protect equally the interests of the employer and the employee. 8 
In order to recover such penalties the employee must comply 
strictly with any prescribed formalities, as nothing will be 
taken by way of intendment in the enforcement of penalizing 
provisions. 9 In this connection may be mentioned laws that 

iAriz., Pen. Code, sec. 616; Ark., Acts 1905, No. 210; Colo., A.S. sec. 
2801ql ; Oreg., Acts 1907, ch. 163 ; S. C. Civ. Code, sec. 2718. 

* St. Louis, I. M. & S. R. Co. ». Paul, 173 U.S. 404, 15 Sup. Ct. 1042. 
» Leep v. St. Louis, etc., R. Co., 58 Ark. 407, 25 S.W. 75. 

4 Leep v. St. Louis, etc., R. Co., supra. 

« Ark., Acts 1905, No. 210 ; Colo., A.S. sec. 2801ql. 

• Ind., A.S. sec. 7068. 

' Seeleyville Coal Co. v. McGlosson, 166 Ind. 561, 77 N.E. 1044. 

« San Antonio & A. P. R. Co. v. Wilson, 4 Texas App. 565, 19 S.W. 910. 

» St. Louis, I. M. & S. R. Co. v. McClerkin, 88 Ark. 277, 114 S.W. 240. 



WAGES 55 

require the payment of interest on any portion of the wages 
retained as a pledge of continued and satisfactory service, 1 
and laws prohibiting entirely such retention. 2 

Section 23. Place of Payment. — One state has a law regu- 
lating the place of the payment of wages, payment in bar- 
rooms or other places where liquor is sold being prohibited ; 3 
while another allows a discharged employee of a railroad com- 
pany to designate any station where a regular agent is kept as 
the place of payment of the wages due him at the time ; 4 but 
this matter is generally left to the determination of the parties 
to the contract. 

Section 24. Attachments, Garnishments, etc. — Demands by 
an employee's creditors cannot be met by the employer's pay- 
ment to them of wages earned, unless the employee has made 
an assignment of his wages in this particular behalf, unwarranted 
payments by the employer leaving him liable to the employee 
himself for a second payment of the wages. 5 Garnishment or 
other legal proceedings must be resorted to in order to sequester 
a debtor employee's earnings against his will ; and in every state 
of the Union but North Carolina statutory restrictions exist as 
to the amounts that can be so taken, and this state has a general 
exemption provision in its constitution ; in many states the 
restriction applies only where the employee has dependents. 
These statutes may declare a certain percentage of the debtor's 
wages exempt, or they may provide that wages for a certain 

1 La., Acts 1908, No. 31. 

1 III., R.S. ch. 48, sec. 16 ; Conn., G.S. sec. 4696. 

3 Cal., Pen. Code, sec. 680. * Ark., Acts 1905, ch. 210. 

B Southern R. Co. v. Fulford, 128 Ga. 103, 54 S.E. 68 ; Terre Haute & I. R. 
Co. v. Baker, 122 Ind. 433, 24 N.E. 83 ; Crisp v. R. Co., 98 Mich. 651, 57 N.W. 
1050 ; Burns v. Marland Mfg. Co., 80 Mass. 487. 



56 LAW OF THE EMPLOYMENT OP LABOR 

period or of a certain amount cannot be taken for debt. The 
statute may exempt all wages in the hands of the employer from 
attachment except for board and lodging for a specified term, 1 
or all current wages. 2 

Wages improperly in the hands of a magistrate through 
garnishment may be recovered by a rule against him. 3 An 
employer cannot allow wages to accumulate in his hands un- 
til the total exceeds the exempted amount and thus defeat 
the provisions of the law, 4 nor can an employee make a valid 
contract waiving his exemption rights. 5 The law exempting 
wages is held to protect from attachment also any property 
purchased by the use of the exempted wages. 6 Courts differ 
on the question as to whether or not the protection af- 
forded by exemption laws extends to non-residents. 7 The 
matter may be determined by statute, as, for instance, a dec- 
laration that the law of the state of residence shall control. 8 
Assigning claims to non-residents or otherwise taking or send- 
ing them out of the state for collection in order to avoid local 
exemption laws is prohibited by the statutes of a number of 
states, and a law of this sort was held to support a request 
for an injunction against a creditor prosecuting his suit out- 
side the state against a garnishee for the recovery of a debt 
that was exempt under the law of the state of residence of both 

1 Pa., B. P. Dig. p. 2077, sees. 25, 26 ; Acts 1905, No. 99. 

2 Texas, R.S. sees. 2395, 2397. 3 Curran v. Fleming, 76 Ga. 98. 
* Chapman v. Berry, 73 Miss. 437, 18 So. 918. 

6 Richardson v. Kaufman, 143 Ala. 243, 39 So. 368 ; Green v. Watson, 75 Ga. 
471. 

6 Aultman & Taylor Co. v. Smith, 119 S.W. 1178 (Ky.). 

7 Cf. Wright v. R. Co., 19 Nebr. 175, 27 N.W. 90, and Lyon v. Callopy, 87 
Iowa 567, 54 N.W. 476. 

8 S. Dak., Justices' Code, sec. 41. 



WAGES 57 

debtor and creditor. 1 The debtor was also held to be entitled 
to a judgment in damages against the creditor for the amount of 
wages collected by him in violation of the law. In another case 
such a law was held to be unconstitutional on the ground that 
it discriminated between wage earners and other debtors, and 
between creditors residing within the state and those residing 
outside, placing the former at a disadvantage ; also as extend- 
ing the exemption laws of a state beyond its boundaries. 2 The 
weight of opinion seems to be, however, that such laws are con- 
stitutional, 3 and that where the law prohibits sending claims out 
of the state, taking them is a violation of the law. 4 The gar- 
nishee's action may be in good faith in making payments that 
could have been defended if there had been a full knowledge of 
the circumstances, in which case the debt will be regarded as 
discharged in so far as he is concerned, the liability falling upon 
the wrongful garnishor ; 5 but where payment is not made, it 
may still be held that the foreign judgment is within the juris- 
diction of the court rendering it, but the payment thereon will 
be subject to the exemption laws of the state of residence of the 
debtor. 8 

Section 25. Assignments of Wages. — Assignments of un- 
earned wages are safeguarded in various ways, as by the require- 
ment that they must be recorded, 7 that copies must be filed with 

i Main v. Field, 13 Ind. App. 401, 40 N.E. 1103 ; Wilson v. Josephs, 107 Ind. 
490, 8 N.E. 616. 

» In re Flukes, 157 Mo. 125, 57 S.W. 545. 

3 Sweeny v. Hunter, 145 Pa. St. 363, 22 Atl. 653 ; Singer Mfg. Co. v. Fleming, 
39 Nebr. 679, 58 N.W. 226. 

4 Wilson v. Josephs, supra. 

« Main v. Field, supra; O'Connor v. Walter, 37 Nebr. 267, 55 N.W. 867. 

8 Sanger Mfg. Co. v. Fleming, supra. 

» Conn., Acts 1905, ch. 78 ; 111., R.S. ch. 10b, sec. 18, etc. 



58 LAW OF THE EMPLOYMENT OF LABOR 

the employer, 1 or even that his consent must be obtained, 2 or 
that the wife must join in the husband's assignments, or vice 
versa} Assignments to secure loans 4 or future advances 5 may 
be declared void, or all assignments of future earnings pro- 
hibited. 6 This latter prohibition was declared constitutional 
in a case in which it was said that the law was enacted for the 
protection of a class of persons who are in large numbers depend- 
ent on daily or weekly wages for the maintenance of themselves 
and families, and whose circumstances render them peculiarly 
liable to imposition and injustice. The law was approved on 
this ground, and as aiming clearly at the "protection of wage 
earners from oppression, extortion, or fraud on the part of 
others, and from the consequences of their own weakness, folly, 
or improvidence." 7 

The language of the court in this case can hardly commend 
itself to general acceptance, for while laws of the same general 
class are sustained by the highest courts, the reasons usually of- 
fered do not convey the impression of restraint on the acts of the 
employee on account of his incapacities of the sort designated. 
Indeed, the court of one state declared a law prohibiting the 
payment of wages in scrip, even at the employee's option, was 
"an encroachment upon his constitutional rights, and an ob- 
struction to his pursuit of happiness. Such laws as the one 
under consideration classify him among the incompetents, and 
degrade his calling." 8 The constitutionality of the law of 

1 Mass., Acts 1906, ch. 390 ; N.Y., Acts 1904, ch. 77. 

J La., Acts 1906, No. 5 ; *Minn., Acts 1905, ch. 309 ; Mass., Acts 1908, ch. 605. 
3 Colo., Acts 1907, ch. 240; Iowa, Acts 1906, ch. 148; Mass., Acts 1908, 
supra. * Ga., Acts 1904, p. 84. 

6 Mass., Acts 1906, ch. 390. 6 Ind.. A.S., sec. 7059c. 

7 Int. Textbook Co. v. Weissinger, 160 Ind. 349, 65 N.E. 521. 
» State v. Haun, 61 Kans. 146, 59 Pac. 340. 



WAGES 59 

Massachusetts requiring the recording of assignments and 
their prior acceptance by the employer, as well as the joint 
action of the wife, was upheld by the supreme court of that 
state on the grounds that it lessened the opportunity for dis- 
honesty on the part of both wage earners and money lenders, 
as well as tending to diminish the risk of litigation consequent 
on the refusal of an employer to pay the assigned wages. It 
also admitted the validity of a distinction between assignments 
to secure loans of money and assignments as security for ne- 
cessities. The section relating to the wife's joint action was 
held to be of less certain validity, but was supported as within 
the power of the legislature, which " might look chiefly to the 
ordinary relations between husband and wife under the law, 
and adopt this form of regulation as salutary in its application 
to most members of the class with which they were dealing." x 
The business of dealing in assigned wages may be regulated 
by prohibiting discounts in excess of the legal rate of interest ; 2 
or dealers may be required to procure a license, the rate of in- 
terest and other charges be limited, all calculations required to be 
based on the amount actually advanced by the broker, or other 
restrictions made. 3 An ordinance embodying a number of 
these regulations was declared constitutional as tending to pre- 
vent fraud and extortion ; 4 so of a law of Connecticut limiting 
the rate of interest; 5 while in Texas a statute taxing dealers in 
assigned wages 6 was declared unconstitutional as restraining 

1 Mutual Loan Co. v. Martell, 200 Mass. 482, 86 N.E. 916. 
J N.J., G.S., p. 2344 ; Md M Acts of 1906, ch. 399. 

3 Colo., Acts 1909, ch. 17; Del., Acts 1909, ch. 233; Ind., Acts 1909, ch. 34, 
etc. « Sanning v. City of Cincinnati, 81 Ohio St. 142, 90 N.E. 125. 

* State v. Hurlburt, 82 Conn. 232, 72 Atl. 1079. 
« Acts 1905, ch. 111. 



60 LAW OF THE EMPLOYMENT OF LABOR 

freedom of trade and denying equality before the law; 1 and an 
Illinois statute applying to salaries as well as wages, and declar- 
ing the forfeiture of the principal where the interest is usurious, 2 
was for these reasons declared void, 3 restrictions on salaried 
employees not being justified, and other usurious contracts not 
being dealt with in so drastic a manner. 

Section 26. Suits for Wages. — Suits for wages are specially 
provided for in a number of states, as by allowing a successful 
claimant an additional recovery for attorneys' fees ; 4 by pro- 
hibiting a stay of execution where the judgment is for the re- 
covery of a wage debt ; 5 by providing that no property shall be 
exempt from execution on such a judgment; 6 by placing suits 
for wages for manual labor at the head of the trial docket ; 7 by 
providing that two or more wage claimants may make joint 
appeals ; 8 or by prohibiting the allowance of setoffs in suits for 
wages except for money actually loaned or advanced, 9 or unless 
specifically provided for in writing. 10 

Courts differ as to the constitutionality of laws allowing a 
successful claimant in a suit for wages to recover also an attor- 
ney's fee, some holding such laws constitutional, 11 while others 

i.Owens v. State, 53 Tex. Cr. App. 105, 112 S.W. 1075. 

« Act of May 13, 1905. 3 Massie w. Cessna, 239 111. 352, 88 N.E. 152. 

* Cal., Acts 1907, ch. 51 ; Idaho, Code, sec. 3721 ; 111., R.S. ch. 13, sec. 13 ; 
Ind., A.S. sec. 7068. 

6 Iowa, Code, sec. 3996 ; Mich., C.L. sec. 901 ; N. Dak., Code, sec. 8447 ; 
Ohio, Gen. Code, sec. 10,403. 

•111., R.S., ch. 52, sec. 16 ; Minn., Const., art. 1, sec. 12 ; N.C., Rev. 1905, sec. 
685 ; Va., Code, sec. 3630. 7 Pa., B. P. Dig., p. 2073, sec. 3. 

s Pa., B. Dig., p. 246, sec. 54. 9 Wyo., R.S., sec. 2592. 

10 Ala., Code, sec. 5858 ; Wyo., R.S., sec. 2593. 
I u Vogel v. Pekoe, 157 111. 339, 42 N.E. 386 ; Seeleyville Coal Co. v. McGlosson, 
166 Ind. 561, 77 N.E. 1044; Schmoll v. Lucht, 106 Minn. 188, 118 N.W. 555; 
Singer Mfg. Co. v. Fleming, 39 Nebr. 679, 58 N.W. 226 (holding that the giv- 
ing of an attorney's fee is only compensatory, not penal). 



WAGES 61 

condemn them as giving an unequal advantage to one class of 
suitors l or to a plaintiff over the defendant. 2 The statute of 
Colorado on this subject avoids the latter difficulty by allowing 
an attorney's fee to be recovered by the successful party. 3 

Section 27. Mechanics' Liens. — The common law gave a 
lien on personal property benefited by the labor or care of a 
person to whom it had been intrusted, for the protection of the 
workman's interests. 4 This right has been extended by statute 
to the protection of laborers and mechanics generally, for prac- 
tically every sort of labor, affecting real as well as personal 
property, and laws to this effect are to be found on the statute 
books of every state and territory. 5 

In order to secure the benefits of the statutory lien, the pro- 
visions of the law need be only substantially complied with, as 
such laws are to be liberally construed, 6 and where the com- 
pliance suffices to make the facts certain, errors or superfluities 
will not invalidate the lien. 7 The difficulty of enforcing a lien 
on certain classes of property, and the desire to reach the party 
properly chargeable have combined to lead to the enactment of 



1 Manowsky v. Stephan, 233 111. 409, 84 N.E. 365 (statute included all lien 
claimants) ; Johnson v. Goodyear Min. Co., 127 Cal. 4, 59 Pac. 304 ; Atkinson v. 
Woodmansee, 68 Kans. 71, 74 Pac. 640. 

2 Gulf, etc., R. Co. v. Ellis, 165 U.S. 150, 17 Sup. Ct. 255 ; Davidson v. Jen- 
nings, 27 Colo. 187, 60 Pac. 354 ; Randolph v. Supply Co., 106 Ala. 501, 17 
So. 721. 3 Supp. sec. 2801ul. 

4 Oakes v. Moore, 24 Me. 214, 41 Am. Dec. 379 ; Morgan v. Congdon, 4 N.Y. 
552. 

6 The law of the District of Columbia, 31 U.S. Stat. 1384, is a fair type of laws 
of this class. 

6 Mining Co. v. Cullins, 104 U.S. 176 ; Hays v. Mercier, 22 Nebr. 656, 35 N.W. 
894; Traction Co. v. Brennan 87 N.E. 215 (Ind.). Per contra, National Fire 
Proofing Co. v. Huntington, 81 Conn. 632, 71 Atl. 911. 

» Hurley v. Tucker, 112 N. Y. Supp. 980. 



62 LAW OF THE EMPLOYMENT OF LABOR 

special provisions of law where the work is being done by con- 
tractors on property of the sort indicated. Instead of making 
the thing worked on the subject of the lien, the fund from which 
a contractor on public works is to be paid is subjected to a lien 
on due notice to proper authorities, in a few states. 1 The same 
rule may be applied to railroad construction and repair. 2 The 
law may also put upon the principal the duty of withholding 
payments from the contractor when notified of a laborer's claim 
thereon, to await an adjustment of claims. 3 

Section 28. Bonds to Secure Payment of Wages. — Still an- 
other form of protection which applies most frequently to labor 
on public works, 4 though in a few states to railroad work, 5 and in 
New York to canal construction, 6 is one that requires contractors, 
prior to the commencement of their work, to give bond for the 
payment of such claims as would, under other conditions, give 
rise to liens. Such laws exist in a score of jurisdictions, Congress 
having enacted one applicable to public works of the United 
States. 7 This care for the safeguarding of the wages of em- 
ployees of contractors is further expressed by laws compelling 
contracting stevedores to be licensed by public authority, and 
to give bond ; 8 by requiring the recording and publication of the 
contract or other conditions under which certain undertakings 

1 Colo. Supp., sees. 2888-2891 ; Ind., Acts 1905, eh. 124, sec. 9 ; N.Y., Con. 
L., ch. 33, sees. 5, 12. 

* Mich., C. L., sees. 5243-5245 ; Mo., R. S., sec. 1057 
8 Miss., Code, sec. 3074 ; Ohio, Gen. Code, sec. 8325. 

<Ind., A.S. sees. 4300b, 4300c, 5592, 5593; Mich., Acts 1905, No. 187; 
Wash., Code, sees. 5925-5927. 

'Conn., G.S. sec. 3696; Me., R.S. ch. 51, sec. 47; Minn., R.L., sees. 2919, 
2920. 

• Con. L., ch. 5, sec. 145. 7 28 Stat. 278 ; 33 Stat. 811. 
« Md., Acts 1898, ch. 505 ; N.C., Rev. 1905, sec. 2050. 



WAGES 63 

are carried on ; * or by making the failure of a contractor to pay 
wages due out of current receipts under the contract a misde- 
meanor, 2 or a felony, 3 though this latter law applies only to 
labor on public works. Laws of this class come within the 
reason of lien laws, and have generally received a liberal con- 
struction, with a view to effectuating their purpose to require 
payment for labor and materials from those who profit by their 
use. 4 

Section 29. Liability of Stockholders of Corporations. — The 
earnings of employees of corporations are protected in several 
states by statutes that make individual stockholders, either in 
designated classes of corporations, 5 or in business corporations 
generally, 6 liable for wage debts due employees. 

Section 30. Preference of Wage Claims. — Of almost equal 
universality with the lien laws are laws making wages preferred 
claims in the settlement of the estates of deceased employers 
and in cases of bankruptcy, assignments, executions, etc. 7 Such 
laws are constitutional, 8 and apply to all wages due at the time, 
whether the claimant has left service or not. 9 They are vari- 
ously interpreted, some courts holding that they should be 
strictly construed, and that they are for the benefit of manual 

1 Idaho, Code, sec. 638. 2 S.C., Cr. Code, sec. 338. 

» Cal., Pen. Code, sec. 653d. 

* Hill v. American Surety Co., 200 U.S. 197, 26 Sup. Ct. 168. 

8 Ind., A.S. sees. 5077, 5198, etc. ; N.J., G.S., pp. 1610, 2319 ; N.C., Rev. 
1905, sec. 2556. 

8 Mass., Acts 1903, ch. 437, sec. 33 ; Mich., Const., art. 15, sec. 7 ; Pa., B.P. 
Dig., p. 423. 

7 Mass., R.S., ch. 142, sec. 1; ch. 163, sec. 118; N.Y., Con. L., ch. 12, sec. 
27 ; ch. 31, sec. 9 ; U.S., 30 Stat. 563, Comp. St., p. 3447, sec. 64, etc. 

8 Richardson v. Thurber, 104 N.Y. 606 ; Small v. Hammes, 156 Ind. 556, 60 
N.E. 342. 

" In re Scott, 148 N.Y. 558, 42 N.E. 1079. 



64 LAW OF THE EMPLOYMENT OF LABOR 

laborers only ; l while others rule that they should receive a 
"fair and liberal construction/ ' 2 and that they are applicable 
in the case of a superintendent of laborers, 3 or of bookkeepers 
and salesmen, under a law using the term "employees." 4 
Such a law cannot be availed of by an official of a corporation 
advancing wages due its employees ; 5 nor, it has been held, by 
an assignee of a wage debt, 6 though the contrary has been held, 7 
and it is not blear why the rule in this case should differ from 
that in others involving like conditions. 8 The claim given has 
been held not to amount to a lien, 9 though here again other courts 
have viewed the law differently ; 10 and it seems a wise provision 
of statute to declare the status of such a claim. n Where the view 
is held that the claim does not rank with a lien, it will follow 
that perfected lien claims take precedence over wage claims of 
other forms ; 12 though a prior mortgage ranks below the claim 
given by such a statute, 13 and to hold otherwise would give 
a lender gratuitously the benefit of the labor which goes into 
the property and gives it its existence and value. 

Section 31. Payment of Wages in Scrip, etc. — Many states 

1 People v. Remington, 45 Hun 329 (N.Y.) ; Raynes v. Kokomo Ladder, etc. 
Co., 153 Ind. 315, 54 N.E. 1061 ; Johnston v. Barrills, 27 Ore. 256, 41 Pac. 656. 

2 Bass v. Doermann, 112 Ind. 390, 15 N.E. 377. 

3 Pendergast v. Yanders, 124 Ind. 159, 24 N.E. 724. 

* Palmer v. Van Santvoord, 153 N.Y. 612, 47 N.E. 915. 
e Suddath v. Gallaher, 126 Mo. 393, 28 S.W. 880. 

6 People v. Remington, supra. 

7 Falconio v. Larsen, 31 Oreg. 137, 48 Pac. 703 ; Union Trust Co. v. Southern 
Sawmills & Lumber Co., 166 Fed. 193. 8 White v. Stanley, 29 Ohio St. 423. 

9 Winrod v. Walters, 141 Cal. 399, 74 Pac. 1037. 

10 Coe v. R. Co., 4 Stew. (31 N.J. Eq.) 129 ; In re Slomka, 117 Fed. 688. 

11 N.J., Acts 1896, ch. 185, sec. 83. (Declares claim a lien.) 

12 In re Kirby-Dennis Co., 95 Fed. 116 (C.C.A.). 

13 Bell v. Hiner, 16 Ind. App. 184, 44 N.E. 576 ; Litzenberg v. Trust Co., 8 
Utah 15, 28 Pac. 871 ; Reynolds v. Black, 91 Iowa 1, 58 N.W. 922. 



WAGES 65 

have laws regulating the payment of wages with respect to the 
medium of payment. Payment in scrip, tokens, store orders, 
or non-negotiable paper is in general prohibited by the laws of 
this class. 1 These laws take a variety of forms, and have been 
the subject of much litigation in disputes as to their constitu- 
tionality, and on this point the courts do not agree. It has been 
held that it was a violation of such a law to issue by agreement 
an order for merchandise ; 2 and that an employee accepting 
scrip issued in violation of the law had no right of action to recover 
its face value, and could convey none to an assignee. 3 The laborer 
did not forfeit his right to wages, however, by the acceptance of 
the checks, though they were of no value to him even as evi- 
dence ; but he might sue, as might his assignor in a proper case, 
in an action for work and labor performed, and recover a quantum 
meruit. 4 A statute requiring all wage earners to be paid in 
lawful money has been held not to be violated by the issue be- 
tween paydays of checks for merchandise at the company's 
store, monthly balances being paid in cash, but no unused checks 
being redeemed ; 5 and a law prohibiting the issue of non-trans- 
ferable scrip, and requiring the redemption of all scrip at its 
"face value" in the hands of the holder, was said not to authorize 
an assignee of scrip payable in merchandise to demand payment 
in money. 6 A law that is unique in the method proposed for 
discouraging the use of scrip is one that levies a tax of twenty-five 

" 111., R.S., ch. 98, sec. 18; Ga., Civ. Code, sec. 1871 ; Ind., A.S., sec. 7060; 
Acts 1903, ch. 171 ; N.J., G.S., p. 2343 ; N.Y., Con. L., ch. 31, sec. 10. 

* Cumberland Glass Mfg. Co. v. State, 58 N.J.L. 224, 33 Atl. 210. 
3 Naglebaugh v. Mining Co., 21 Ind. App. 551, 51 N.E. 427. 

* Naglebaugh v. Mining Co., supra. 

6 Avent Beattyville Coal Co. v. Com., 96 Ky. 218, 28 S.W. 502. 
6 Marriner v. Roper Co., 112 N.C. 164, 16 S.E. 906. 



66 LAW OF THE EMPLOYMENT OF LABOR 

per cent on all scrip, coupons, or orders issued in payment for 
wages and not redeemed in money within thirty days after the 
date of such issue. 1 Laws that prohibit the payment of wages 
in merchandise, orders, etc., are obvious and direct interferences 
with the freedom of contract, but a law to this effect was en- 
forced in New Jersey. 2 A law requiring employers to redeem 
in cash at their face value all coupons, scrip, or orders issued 
by them in payment of wages has been held constitutional, 3 
and is equally binding on foreign corporations as on those formed 
within the state ; 4 but a penal provision authorizing imprison- 
ment for failure to redeem is unconstitutional, as such action 
would amount to imprisonment for debt. 5 An assignee's rights 
are the same as those of the original holder, and no inquiry can 
be raised as to the amount actually paid by the assignee for 
his claim. 6 

On the other hand is the ruling that a provision that wages 
may be paid only in lawful money interferes with the right of 
contract, and is void ; 7 so of a law that prohibits the issue of 
orders, etc., unless negotiable and redeemable at their face 
value in lawful money. 8 Laws applying only to mining and 

» Pa., B. Dig. p. 874. 

* Cumberland Glass Mfg. Co. v. State, 58 N.J.L. 224, 33 Atl. 210. 

8 Knoxville Iron Co. v. Harbison, 183 U.S. 13, 22 Sup. Ct. 1 ; Johnson, Lytle 
& Co. v. Spartan Mills, 68 S.C. 339, 47 S.E. 695 ; Union Sawmill Co. v. Felsenthal, 
84 Ark. 494, 108 S.W. 217 ; Shortall v. Bridge, etc., Co., 45 Wash. 290, 88 Pac. 
212 ; Peel Splint Coal Co. v. State, 36 W. Va. 802, 15 S.E. 1000. 

* Dayton Coal & I. Co. v. Barton, 183 U.S. 23, 22 Sup. Ct. 5. 

1 State v. Paint Rock Coal & Coke Co., 8 Pickle (Tenn.) 81, 20 S.W. 499. 

8 Harbison v. Iron Co., 103 Tenn. 421, 53 S.W. 955. 

7 Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. 354 ; Jordan v. State, 51 Tex. 
Cr. App. 531, 103 S.W. 633 ; Kelleyville Coal Co. v. Harrier, 207 111. 624, 69 N.E. 
927. 

* State v. Missouri Tie, etc., Co., 181 Mo. 536, 80 S.W. 933. 



WAGES 67 

manufacturing companies have been declared unconstitutional, 
as special and discriminatory ; 1 so of one exempting farm labor 
from its provisions, 2 or one applicable to corporations only. 3 

1 State v. Goodwill, 33 W. Va. 179, 10 S.E. 285; State v. Loomis, 115 Mo. 
307, 22 S.W. 350 ; Dixon v. Poe, 159 Ind. 492, 65 N.E. 518. 

2 Kelleyville Coal Co. v. Harrier, supra. 

3 State v. Haun, 61 Kans. 146, 59 Pac. 340. It is perhaps of sufficient import- 
ance to notice here the status of corporations in respect of restrictive legislation 
of the sort under discussion, inasmuch as diametrically opposite views seem to be 
entertained by the courts of different states. Thus in the Haun case, corpora- 
tions are said to be persons within the guarantee of the fourteenth amendment 
as to the equal rights of persons (citing Santa Clara Co. v. Southern P. R. Co., 
118 U.S. 394, 6 Sup. Ct. 1132 ; Pembina Min., etc., Co. v. Pennsylvania, 125 U.S. 
181, 8 Sup Ct. 737) and entitled to protection against unfair discrimination as 
are other persons. Other courts have declared a law unconstitutional that dis- 
criminated against corporations as compared with other employers (Johnson v. 
Goodyear Min. Co., 127 Cal. 4, 59 Pac. 304; Toledo, etc., P. Co. v. Long, 169 
Ind. 316, 82 N.E. 757; O'Connell v. Lumber Co., 113 Mich. 124, 71 N.W. 449; 
Harbison v. Iron Co., 103 Tenn. 421, 53 S.W. 955 ; Santa Clara Co. v. Southern 
P. R. Co., supra) ; while the supreme court of Arkansas held that while the law 
governing the payment of wages to discharged employees might be invalid as to 
individual employers, it was nevertheless valid as to corporations (Leep v. R. 
Co., 58 Ark. 507, 25 S.W. 75) ; and on the point being submitted by the legisla- 
ture to the supreme court of Rhode Island, a law limiting the hours of labor of 
employees on street railways was declared valid, one of the reasons assigned 
being that the law applied to corporations. (Ten Hour Law, 24 R.I. 603, 54 Atl. 
602.) 

It should be observed that the doctrine applied by the courts of Arkansas and 
Rhode Island, which was also approved by the Supreme Court of the United 
States (St. Louis, I. M. & S. R. Co. v. Paul, 173 U.S. 404,19 Sup. Ct. 419 ; Ham- 
mond Packing Co. v. State, 212 U.S. 322, 29 Sup. Ct. 370) was expressly based on 
the reserved power of the state to amend the charters of corporations, which are 
the creatures of the state. This view was taken, and for the reason assigned, in 
cases in which laws requiring railroad and other corporations to pay their em- 
ployees weekly were upheld. (Lawrence v. Rutland R. Co., 80 Vt. 370, 67 Atl. 
1091 ; State v. Brown & Sharpe Mfg. Co., 18 R.I. 16, 25 Atl. 246) ; so that the 
real difference would appear to be in the express provisions of the constitutions of 
the various states as to reserved powers over corporate bodies, or in the views 
taken by the courts as to the fair and just implication of such resident power 
apart from explicit statements. There is no reasonable question that corpora- 



68 LAW OF THE EMPLOYMENT OF LABOR 

In the last named case it was also held that a provision exempt- 
ing corporations employing fewer than ten men was discrimina- 
tory and would of itself invalidate the law. 1 

A case in which the law was declared valid, but was, by con- 
struction, apparently largely deprived of its intended force, was 
one in which the statute requiring certain corporations to pay 
their employees only in cash was held not to prevent employees 
from drawing orders on their employers in favor of merchants 
from whom they had purchased goods, the amounts of such 
orders to be deducted from the wages due the employees draw- 
ing the same. 2 The effect and practical working of such a 

tions are persona in the eye of the law, with such capacities as the law creat- 
ing them bestows. The view would not seem to be an unreasonable one, how- 
ever, that was taken in a recent case, that the nature of a corporation as a creature 
of law, — a person only by a sort of legal fiction, — and incapable of subjection 
to certain penalties, as imprisonments, warrants different forms of punishment in 
case of violations of the law than are provided against individuals guilty of like 
offenses (State v. Standard Oil Co., 218 Mo. 1, 116 S.W. 902) ; and if discrim- 
inations of this sort are thus justifiable, it is not difficult to realize that a like 
course of reasoning will lead to corresponding rulings where other phases of 
corporate and individual rights and remedies are the subject of consideration, the 
wider scope of the power which the state possesses over corporations and joint 
stock associations in and of itself affording a ground for distinctions between 
them and individuals. (Hammond Packing Co. v. State, supra.) 

Certain distinctions hold between corporations and individuals because of the 
fact that although persons, and thus entitled to an equality of protection and the 
right not to be deprived of their property without due process of law, under the 
provisions of the fourteenth amendment, corporations are not citizens, entitled 
to all the privileges and immunities of citizens in the several states, under the 
provisions of Article 4, section 2, clause 1, of the Constitution, or of the fourteenth 
amendment thereto ; since the term, "citizens" "applies only to natural persons, 
members of the body politic owing allegiance to the state, not to artificial per- 
sons created by the legislature, and possessing only such attributes as the legis- 
lature has prescribed." (Pembina Min. Co. v. Pennsylvania, supra; Orient 
Ins. Co. v. Daggs, 172 U.S. 557, 19 Sup. Ct. 281.) 

1 See also Union Sawmill Co. v. Felsenthal, supra. 

2 Shaffer v. Union Min. Co., 55 Md. 74. 



WAGES 69 

method would differ in no respect from the issue of orders by 
the employer, to be presented by the workman in payment for 
goods to be purchased. 

Diverse rulings are found as to the status of the tokens in com- 
mon use where payments in other than lawful money are al- 
lowed. Thus it is said that they possess none of the essential 
qualities of a negotiable instrument payable to the bearer, and 
that mere possession raises no presumption as to rights ; ! 
while on the other hand they have been held to be promises in 
writing to pay, and the party issuing them was not allowed to 
be heard to oppose the legal presumption that they were based 
on a valuable consideration, 2 a conclusion that appears to be 
well founded as against a corporation issuing tokens stamped 
with a mark apparently intended to indicate value, and issued 
by it in adjustment of its affairs with others. 

Section 32. Company Stores. — Within the meaning of the 
laws regulating the medium of payment of wages, and subject 
to the same rules of construction, are laws regulating the opera- 
tion of what are known as company stores. Such stores may 
be prohibited, 3 or they may merely be forbidden to charge any 
higher price for goods sold to employees than that charged for 
goods sold to other customers for cash. 4 Some of these laws 
relate only to designated classes of employers, and would seem 
to fall under the strictures of the fourteenth amendment of the 
Federal Constitution as to uniformity and equality of legislation ; 
and such has been the view taken by some of the state courts 



1 Attoyac River Lumber Co. v. Payne, 122 S.W. 278. (Tex. Civ. App.) 

2 Kentucky Coal Mining Co. v. Mattingly, 133 Ky. 526, 118 S.W. 350. 
8 Colo., Supp., sec. 2801fl ; Pa., B. P. Dig., p. 1385. 

4 Ind., A.S., sec. 7061 ; Ohio, Gen. Code, sec. 12945 ; Va., Code, sec. 3657d. 



70 LAW OF THE EMPLOYMENT OF LABOR 

of last resort. 1 In the West Virginia case cited, the court also 
denounced the law as an " insulting attempt to put the laborer 
under legislative tutelage." 

Section 33. Freedom of Employees as Traders, etc. — Laws 
directed to the subject of freedom in the choice of stores or places 
for trading come within the same class of laws with the above, 
and are found in connection therewith, their intention being, as 
set forth in the opinion in a case involving the const itutionality 
of the statute, 2 to correct the abuse practiced on workmen "by 
forcing them, directly or indirectly, into dealing with the 'com- 
pany stores/ where goods at exorbitant prices were paid for 
wages instead of money." In this case a statute was upheld 
that is restricted in its application to mines operating with ten 
or more employees, 3 the court holding that the statute was au- 
thorized by the state constitution, which requires the payment of 
wages in lawful money ; and that the discrimination as to mines 
employing ten or more persons was not offensive, since in cases 
where a smaller number was employed, the evil aimed at could 
hardly be practiced. Laws of this description are found in a 
number of states, 4 while in a few, restrictions in the choice of 
boarding houses are similarly forbidden. 5 The constitutionality 
of this class of laws is generally sustained, 6 though apart from 

1 Frorer v. People, 141 111. 171,31 N.E. 395 ; Luman v. Hitchens Bros. Coal 
Co., 90 Md. 14, 44 Atl. 1051 ; State v. Fire Creek Coal &Coke Co., 33 W. Va. 
188, 10 S.E. 288. 

1 Commonwealth v. Hillside Coal Co., 22 Ky. L. R. 559, 58 S.W. 441. 

3 Ky., Stat., sec. 2739A. 

* Colo., Supp., sec. 2801fl ; Ind., A.S., sec. 7073 ; Ohio, Gen. Code, sec. 
12944; Wash., C. & S., sec. 3306, etc. 

« Mont., Acts 1903, ch. 102; Nev., Acts 1903, ch. 124; Oreg., Acts 1907, ch. 
192 ; Utah, C.L., sec. 4487x25. 

6 Shortall v. Bridge, etc., Co., 45 Wash. 290, 88 Pac. 212 ; Peel Splint Coal Co. 
v. State, 36 W. Va. 802, 15 S.E. 1000. 



WAGES 71 

legislation to the contrary, it has been held that an employer may 
lawfully require his employees to refrain from trading or other- 
wise dealing with a designated person, on the ground that he has 
the right to make the terms of his contract such as he chooses, if 
not illegal, and, if accepted by the employee, they are binding 
upon him, and a third person has no right to interfere therewith. 1 
This accords with the principle laid down in a leading case 2 
that an employee is free to work or refuse to work, at his option, 
the right of making terms resting with the contracting parties, 
who may refuse as between themselves to deal with any 
designated person or persons, or may accept such a condition 
laid down by either party. This is clearly the recognized prin- 
ciple of freedom of contract, and where lawfully exercised the 
question of motive cannot be raised, since malice cannot make 
that illegal which is in itself legal. 3 While the enforcement of 
such a restriction by an employer does not involve the element 
of conspiracy, its likeness to the boycott, as usually enforced by 
the mutual agreement of several, has been pointed out ; and it is 
likewise clear that if employers may so dictate as to trade, etc., 
the employee may reciprocally dictate as to employment, so 
that the closed shop, so-called, comes within the same principle. 
The statutes above cited relate to the employees' rights only, 
and do not assume to confer upon any merchant or other person 
injured by a violation thereof the right to sue for damages oc- 
casioned by a violation. Apart from statute, however, it has 
been held that an employer is liable for damages to an injured 

1 Heywood v. Tillson, 75 Me. 225 ; Payne v. Western, etc., R. Co., 81 Tenn. 
507, 49 Am. Rep. 666. (See strong dissenting opinion in this case.) 

J Com. v. Hunt, 4 Mete. 133 (Mass.). See also Carew v. Rutherford, 106 Mass. 
14, 8 Am. Rep. 287. 

» Jenkins v. Fowler, 24 Penn. 308. 



72 LAW OF THE EMPLOYMENT OF LABOR 

third party when as a mere matter of personal preference, or 
the expression of a spirit of malice or revenge, and not from 
the actual interests of his business, he undertakes to require his 
employees not to patronize certain merchants or hotel keepers. 1 
This view is directly opposed to that held in the Heywood and 
Payne cases cited above ; and while it may not accord with the 
abstract legal principle of freedom of contract, the economic 
fact that operates in determining the action of legislatures in the 
enactment of laws undertaking to place the employee on a foot- 
ing by statute that he is unable to secure unaided, would seem 
to favor the prohibition of such restrictive contracts as seek to 
control the liberty of the employee in the spending of his earn- 
ings, since to permit the contrary offers too great opportunity 
for oppression and extortion of the employee himself, regardless 
of the effect on third persons. 

Freedom in the selection of the family physician is protected 
by a statute of Tennessee, 2 which also prohibits the retention 
of any part of an employee's wages, without his full consent, for 
the avowed purpose of paying the salary of a company doctor ; 
while another state forbids employers to require the taking out 
of accident insurance with any specified company. 3 This 
statute was not intended, however, to interfere with the organiza- 
tion of relief funds which employees may voluntarily join, and 
for which the employer may withhold the agreed contribution 
of the employee from his wages. 

1 Railway Co. v. Greenwood, 2 Texas Civ. App. 76, 21 S.W. 559 ; Hanchett v. 
Chiatovich, 101 Fed. 742 (C.C.A.). See also dissenting opinion in the Payne 
case, supra. 

* Code, sees. 6879, 6880. » Mich., C.L., sees. 8584-8586. 



CHAPTER III 

HOUKS OF LABOR 

Section 34. Regulation of Hours of Labor. — The common 
law attempted no definition of the length of a day's labor, that 
being a matter to be determined either by the parties to the con- 
tract of hiring or by the custom of the trade or locality. Courts 
will, however, look into the facts in any given case to determine 
what was reasonable in the circumstances. 1 Pay for overtime 
is not favored, in the absence of particular stipulations, as 
services rendered under a contract are supposed to be covered 
thereby. 2 So if some time is lost by the workman, and the 
employer permits it without remonstrance, he cannot after- 
wards withhold payment. 3 

Unless the nature of the employment or an express contract 
forbids, the employee's time outside of his hours of service may 
be occupied in work for others if such work is not incompatible 
with his duty to his employer. 4 But engaging in work that 
leads to a conflict of interests will not be sanctioned. 5 This 
does not prevent an employee from perfecting patents and re- 

1 Luske v. Hotchkiss, 37 Conn. 219, 9 Am. Rep. 314. 

8 Guthrie v. Merrill, 4 Kans. 187 ; U.S. v. Martin, 94 U.S. 400 ; Fitzgerald v. 
Paper Co., 96 Me. 220, 52 Atl. 655. 

8 Willey v. Warden, 27 Vt. 655. 

* Stone v. Bancroft, 139 Cal. 78, 70 Pac. 1017 ; Hillsboro Nat. Bank v. Hyde, 
7 N. Dak. 400, 75 N.W. 781. 

8 Storey v. Transportation Co., 17 Hun 579 (N.Y.). 

73 



74 LAW OF THE EMPLOYMENT OF LABOR 

taining the right thereto ; x though an enforceable agreement 
may be made by an employee to assign an interest in all patents 
secured by him, 2 or the entire title may be secured to the em- 
ployer by a suitable contract. 3 Where the employee uses the 
property or labor of his employer to perfect an invention, and 
assents to the use of it by his employer, he cannot by afterward 
obtaining a patent compel the employer to pay a royalty, but will 
be presumed to have given him a license to use the invention. 4 
Statutory regulation of the working time has been under- 
taken in a number of states, and for employees engaged in inter- 
state commerce by the United States. 5 The state laws are 
sometimes general in effect, fixing the number of hours that 
constitute a day's labor generally, 6 domestic and farm labor 
being commonly excepted ; or they may fix the hours of labor 
in designated employments, as in smelters, underground mines, 
etc., 7 where work is done in compressed air, 8 on railroads, 9 
street railways, 10 in drugstores, 11 bakeries, 12 and brickyards. 13 
The hours of labor on public works are limited in a number of 

1 Solomons v. U.S., 137 U.S. 342, 11 Sup. Ct. 88 ; Joliet Mfg. Co. v. Dice, 105 
111. 649. 

* Wright v. Vocation Organ Co., 148 Fed. 209, 78 CCA. 183. 
« Hulse v. Bonsack Mach. Co., 65 Fed. 864, 13 CCA. 180. 

* Gill v. United States, 160 U.S. 426, 16 Sup. Ct. 322 ; McClurg v. Kingsland, 
42 U.S. 187 (1 Howard 202). 

* Act of March 4, 1907, 34 Stat. 1415. 

« Ind., A.S., sec. 7052 ; Minn., R.L., sec. 1798 ; N.Y., Con. L., ch. 31, sec. 3, 
etc. 

7 Colo., Acts 1905, ch. 119 ; Mo., Acts 1905, p. 236 ; Utah, C.L., sec. 1537, etc. 

8 N.Y., Acts 1909, ch. 291. 

* Conn., Acts 1907, ch. 242 ; Ind., Acts 1907, ch. 131 ; N.Y., Con. L., ch. 31, 
sec. 7. 

io Md., Pub. G. L., art. 4, sec. 793 ; Mass., Acts 1906, ch. 463, pt. 3, sec. 95. 

» Cal., Acts 1907, ch. 224. 

« N.J., Acts 1905, ch. 102. » N.Y., Con. L., ch. 31, sec. 5. 



HOURS OF LABOR 75 

states, 1 and by the Federal government. 2 Laws designating 
the hours of labor on public roads are found in many states, 
though they apply principally to the working out of taxes, and 
relate less to the employment of labor than to a regulation by 
the people, acting through their representatives, of the time of 
their own service in this particular. They are significant, how- 
ever, as indicating what is considered a day's labor in a form of 
public work, though they establish a minimum day (usually 
eight hours), rather than fix a limit beyond which labor is for- 
bidden. 

Unless overtime work is prohibited, the employer may require 
additional hours of service, either by contract, or in accordance 
with understood custom, and no additional compensation will 
be recoverable therefor. 3 If overtime labor is prohibited, 
and is performed at the request of the employer, it has been held 
that the employee can recover no pay for such excess labor, 
being equally a violator of the law with his employer, and unable 
to reap by law the benefit of his illegal act ; 4 so also of the 
recovery of damages for injuries received while working beyond 
the prescribed period, 5 though this is undoubtedly a hard 
interpretation of the law, since such an act cannot be said to be 
more than an occasion for the injury, and not usually in any 
way the cause of it. (See p. 81.) 

Additional pay may be required by statute where time beyond 

1 Colo., Supp., sees. 2801a to 2801i ; Kans., G.S., sees. 3827 to 3829 ; N.Y., 
Con. L., ch. 31, sec. 3 ; Pa., Acts 1897, No. 374, etc. 

1 Act of August 1, 1892, 27 Stat. 340. 

J U.S. v. Martin, 94 U.S. 400 ; Luske v. Hotchkiss, 37 Conn. 219, 9 Am. Rep. 
314. 

* Short v. Bullion-Beck Min. Co., 20 Utah 20, 57 Pac. 720. 

» Lloyd v. R. Co., 151 N.C. 536, 66 S.E. 604. 



76 LAW OF THE EMPLOYMENT OF LABOR 

the fixed limit is worked. 1 The Michigan statute to this effect 
was held not to apply to employment by the week, month, or 
year. 2 A statute of Nebraska 3 fixing the hours of labor at 
eight per day, excepting farm and domestic labor from its pro- 
visions, and requiring extra pay for overtime labor, was held to 
be unconstitutional, both as denying the right of contract and 
as effecting an unjust discrimination against the excepted 
classes of labor. 4 In the present state of opinion it cannot be 
anticipated that any law regulating generally the hours of labor 
of adult males will be sustained as a restrictive or mandatory 
measure, their force being nothing more than directory, and 
subject to control by contract. 

Of like nature with laws of this class was a law fixing the 
number of pounds that make a ton, where the ton is the unit 
used as the basis for the payment of wages. 5 It was held that 
such a law cannot be defeated by merely setting forth a custom 
of the employer to use a different standard; but if there was 
a special contract, or if it appears that the employee knew of 
the custom at the time of hiring, no recovery can be had for the 
excess over the legal weight. 6 

Section 35. Constitutionality of Statutes Limiting the Hours of 
Labor. — Interference with the freedom of contract in such 
regard is of course justifiable if shown to be a proper exer- 
cise of the police power. The limitation of the hours of 
labor of railroad employees is held to be valid as not only 
benefiting the employees, but also as conducing to the pub- 

1 Mich., C.L., sec. 5453 ; Cal., Pol. Code, sec. 3246. 

* Schurr v. Savigny, 85 Mich. 144, 48 N.W. 547. 8 Acts 1891, ch. 54. 
« Low v. Rees Printing Co., 41 Nebr. 127, 59 N.W. 362. 

* Pa., Acts 1834, p. 527, sec. 17. 

* Godcharles v. Wigeman, 113 Pa. 431, 6 Atl. 354. 



HOURS OF LABOR 77 

lie safety; 1 though a lower court of the State of Ohio de- 
clared such a law an unwarranted invasion of the right of 
contract. 2 It has been held that state laws on the subject 
will have to give way to the Federal law applicable to in- 
terstate commerce, enacted under the commerce power of 
Congress, on account of the difficulty of separating inter- 
state from intrastate operations; but the better view seems 
to be that they may exist coordinately, if not in conflict. 3 
For labor in mines, smelters, and other places where work- 
men are exposed to unhealthful conditions, it is the welfare 
of the employee alone that is looked to, this fact being suf- 
ficient, on a proper showing, to support the law. 4 If, however, 
health is not shown to be in jeopardy, the law will fall. 5 The 
Colorado supreme court declared unconstitutional a law limiting 
the hours of labor of employees in mines and smelters, declaring 
that the state had no right to interfere in a private business, in 
which no matter of public welfare is involved, merely to protect 
the health of an adult male, when the act prohibited, if com- 
mitted, "will injure him who commits it, and him only." 6 
Fortunately such reasoning has not appealed to our courts 
generally. The limitation condemned by the court is now 
embodied in the constitution of the State of Colorado. 7 

1 State v. Northern P.R. Co., 36 Mont. 582, 93 Pac. 945. 

2 Wheeling, B. & T. R. Co. v. Gilmore, 8 Ohio C. C. Rep. 658. 

3 Compare State v. Missouri P. R. Co., 212 Mo. 658, 111 S.W. 500; State v. 
Northern P. R. Co., supra, and State v. Chicago, etc., R. Co., 136 Wis. 407, 117 
N.W. 686, with Lloyd v. R. Co., 151 N.C. 536, 66 S.E. 604, and People v. Erie R. 
Co., 198 N.Y. 369, 91 N.E. 849. See also Smith v. Alabama, 124 U.S. 465, 8 
Sup. Ct. 564. 

4 Holden v. Hardy, 169 U.S. 366, 18 Sup. Ct. 383 ; State v. Cantwell, 179 Mo. 
245, 78 S.W. 569 ; State v. Thompson, 15 Wyo. 136, 87 Pac. 433. 

5 Lochner v. New York, 198 U.S. 45, 25 Sup. Ct. 539. (Bakery employees.) 

6 In re Morgan, 26 Colo. 415, 58 Pac. 1071. 7 Art. 5, sec. 25a. 



78 LAW OF THE EMPLOYMENT OF LABOR 

A law regulating the hours of labor of employees on street rail- 
ways was held to be within the power of the legislature to enact, 
and therefore constitutional, on three grounds, — that it dealt 
with public corporations, which are created by and subject to 
legislative action and control ; that it was the regulation of the 
use of a public franchise; and that it provided for the public 
safety by protecting employees from excessive strain. 1 

The boundary line between constitutional and unconstitu- 
tional laws of this class is jealously guarded, and is not yet 
clearly defined. Thus a New York statute limiting the hours 
of labor in bakeries 2 was upheld by the highest court of the 
state by a majority of one, 3 and rejected by the Federal Su- 
preme Court by a like majority, 4 the entire difficulty being the 
difference of view between the courts and the members com- 
posing them as to what is and what is not a proper exercise of 
the police power in behalf of the public welfare. 

It would appear to be a sufficient support for laws limiting 
the hours of labor on public works that the state has a right to 
prescribe the conditions under which its own work shall be per- 
formed. 5 Municipal corporations are but auxiliaries of the 
state for the purposes of local government, and exercise their 
powers under grants from the state, subject to restriction or 
enlargement, as the legislature may from time to time see fit to 
act. 5 A contrary view has been taken, however, which is to 
the effect that such corporations are, in the conduct of local 

1 In re Ten-hour Law, 24 R.I. 603, 54 Atl. 602. » Con. L., ch. 31, sec. 110. 

» People v. Lochner, 177 N.Y. 145, 69 N.E. 373. 

« Lochner v. New York, 198 U.S. 45, 25 Sup. Ct. 539. 

6 Williams v. Eggleston, 170 U.S. 304, 18 Sup. Ct. 617; Atkin v. Kansas, 191 
U.S. 207, 24 Sup. Ct. 124; Keefe v. People, 37 Colo. 317, 87 Pac. 791, Ryan v. 
City of New York, 177 N.Y. 271, 69 N.E. 599. 



HOURS OF LABOR 79 

affairs and the expenditure of money raised by local taxation 
on the same footing with private corporations, and not sub- 
ject to the abridgment of their right to contract freely. 1 

Section 36. Sunday Labor. — Where a contract is for the 
entire time and services of an employee, whether or not this 
includes labor on Sunday depends on custom and the manner of 
conducting the business. 2 The common law does not forbid 
Sunday labor, but laws have been enacted in nearly every juris- 
diction of the United States restricting such labor to works of 
necessity or charity. The excepted occupations may be enu- 
merated in the statute, 3 or it may be left to the courts to decide 
what occupations come within the language of the law ; or the 
law may be general, with specific designations of some one or 
more employments. Though laws of this last class are in a 
sense discriminatory, they have been upheld as constitutional, 4 
though not uniformly. 6 

The operation of passenger trains and of trains carrying live 
stock and perishable freight is generally allowed, though in a 

1 People v. Grout, 179 N.Y. 417, 72 N.E. 464 ; City of Cleveland v. Construc- 
tion Co., 67 Ohio St. 197, 65 N.E. 885 ; City of Seattle v. Smyth, 22 Wash. 327, 60 
Pac. 1120. It may be noted that after the action of the court of appeals of the 
state, the people of New York amended their constitution, specifically authoriz- 
ing the legislature to regulate contracts of employment on public work, in 
accordance with which ch. 506, Acts of 1906, was enacted. This law has been 
held constitutional, the court saying that the people have commanded the right 
of freedom of contract to yield so far as reasonably necessary to permit such regu- 
lation. People ex rel. Williams Eng. & Const. Co. v. Metz, 193 N.Y. 148, 85 N.E. 
1070. 

2 Collins Ice Cream Co. v. Stephens, 189 111. 200, 59 N.E. 524. 

3 Mass., R.L., ch. 98, sec. 3. 

* Petit v. Minnesota, 177 U.S. 164, 20 Sup. Ct. 666 ; State v. Dolan, 13 Idaho 
693, 92 Pac. 995 ; People v. Bellet, 99 Mich. 151, 57 N.W. 1094. 

8 Armstrong v. State, 170 Ind. 188, 84 N.E. 3 ; State v. Granneman, 132 Mo. 
326, 33 S.W. 784 ; Eden v. People, 161 111. 296, 43 N.E. 1108. 



80 LAW OF THE EMPLOYMENT OF LABOR 

number of states the operation of trains of any kind is forbidden. 
Where laws of this sort exist, they are construed as regulations 
of internal police, and not of commerce. 1 The publication and 
sale of newspapers, the sale of drugs, tobacco, milk, ice, and 
the like, are also generally permitted. A common provision is 
one that exempts from the requirement of the observance of 
Sunday as a day of rest those who observe another day. A few 
states have laws requiring the granting to employees of a weekly 
day of rest, that of Massachusetts being in effect a requirement 
that workmen employed on Sunday shall be allowed a day of 
rest within the week following. 2 The law of Missouri 3 applies 
only to employees in bakeries, while that of California is gen- 
eral. 4 This state has no Sunday law, strictly speaking, such 
laws having been held by the courts of the state to be in viola- 
tion of religious freedom, as compelling the observance of a day 
held sacred by the believers in one faith and not by others. 5 
Though this opinion was reversed in a later case, 6 the present 
law is one requiring a weekly day of rest, the day not being 
designated. Opposed to the view that laws of this sort have a 
religious aspect is the one that regards them as social or eco- 
nomic measures, and not as compelling religious observance. 7 
In the Petit case it was said that laws of this class are supported 
as constitutional by " well-nigh innumerable decisions of the state 
courts/ ' as well as by the uniform course of the Supreme Court. 
The effect on the employee's right to recover when he is in- 

1 Hennington v. State, 90 Ga. 396, 17 S.E. 1009 ; affirmed, 163 U.S. 299, 16 
Sup. Ct. 1086 ; Norfolk & W.R. Co. v. Com., 93 Va. 749, 24 S.E. 837. 

2 Acts 1907, ch. 577. * R.S. sec. 10088. 

« Sim's Penal Code, App., p. 722. 6 Ex parte Newman, 9 Cal. 502. 

• Ex parte Andrews, 18 Cal. 678. 

7 Petit v. Minnesota, 177 U.S. 164, 20 Sup. Ct. 666 ; Swann v. Swann, 21 Fed. 
299. 



HOURS OF LABOR 81 

jured in work being carried on in violation of Sunday laws is 
ruled on differently by different courts. Thus it has been held 
that labor on Sunday in violation of the law is contributory 
negligence, so that an employee could not recover for injuries 
received while so laboring, even though the defect causing the 
injury was due to the employer's negligence; 1 while the con- 
trary rule is laid down elsewhere, on the ground that the em- 
ployee's act in laboring on Sunday was not more than the remote 
cause of the accident, the negligence of the employer being the 
proximate cause. 2 Clearly the employer should not be allowed 
to ask for and receive the benefits of such service and then dis- 
claim liability for injuries caused by his own negligence during 
its performance. It is the law, however, that no recovery can 
be had for wages for prohibited labor on Sunday, 3 and that a 
contract involving service on Sundays and other days is an en- 
tire one, the illegality, so far as the Sunday work is concerned, 
rendering the contract entirely void, so that the employee can 
recover nothing in an action at law for any of his services ; 4 
though a subsequent promise to pay will support an action for 
the value of the work done. 5 Of course no action will lie for a 
breach of contract for such labor ; 6 but where payments have 

1 Read v. Boston & A.R. Co., 140 Mass. 199, 4 N.E. 227 ; but see Newcomb v. 
Boston Protective Dept., 146 Mass. 596, 16 N.E. 555. 

2 Hoadly v. Paper Co., 72 Vt. 79, 47 Atl. 169 ; Railway Co. v. Buck, 116 Ind. 
566, 19 N.E. 453 ; Solarz v. Railway Co., 29 N.Y.S. 1123, 8 Misc. 656 ; Railway 
Co. v. Towboat Co., 23 Howard 209, 3 U.S. 507 ; Moran v. Dickinson, 204 Mass. 
559, 90 N.E. 1150. 

3 Carson v. Calhoun, 101 Me. 456, 64 Atl. 838 ; Brunnett v. Clark, 1 Sheld. 500 
(N.Y.). 

4 Stewart v. Thayer, 168 Mass. 519, 47 N.E. 420 ; Slade v. Arnold, 53 Ky. 287 ; 
Williams v. Hastings, 59 N.H. 373. 

6 Telfer v. Lambert, (N.J.L.) 75 Atl. 779. 
8 Bernard v. Lupping, 32 Mo. 341. 



82 LAW OF THE EMPLOYMENT OF LABOR 

been made for Sunday labor, they cannot be recovered by the 
employer on the ground of the invalidity of the contract for such 
labor. 1 

The invalidity of a contract for Sunday labor will not operate 
to relieve one from the penalty for an additional offense in con- 
nection therewith, as the employment of a child in a place where 
intoxicants are sold, such employment being forbidden, since 
the service itself is the evil to be guarded against, without regard 
to the means by which the engagement was in fact procured. 2 
Where the employer is entitled to the defense of fellow-service, 
the employee cannot overthrow it by showing that he was at 
work on Sunday in violation of law, and therefore employed 
under a void contract, and so not an employee. 3 

1 Calkins v. Mining Co., 5 S. Dak. 299, 58 N.W. 797. 

2 State v. Hall, 141 Wis. 30, 123 N.W. 251. 

1 Shannon v. Union R. Co., 27 R.I. 475, 63 Atl. 488. 



CHAPTER IV 

REGULATION OF THE PHYSICAL CONDITIONS OF EMPLOYMENT 

Section 37. Statutory Control. — The conditions surround- 
ing employees in their places of employment are the subject of 
regulation by statute in most of the states of the Union, whereby 
the freedom of the employer to carry on his business in accord- 
ance with his own ideas and plans, secured to him in general by 
the principles of the common law, 1 is interfered with. The 
principal groups of laws of this class relate to the conditions of 
safety and sanitation required in factories, etc., the equipment 
and operatiou of railways, mining operations, and the erection 
and repair of buildings. 

Section 38. Regulation of Factories and Workshops. — Fac- 
tory regulations range from the simple requirement that the 
doors of workrooms shall open outwardly as a safeguard in case 
of fire, 2 provision for fire escapes being coupled therewith in 
some cases, 3 to an elaborate code covering the guarding of dan- 
gerous machinery, 4 the removal by forced draft of dust and 
injurious gases, 5 the adequate provision of light 6 and air, 7 and 

1 Tuttle v. Detroit, etc. R. Co., 122 U.S. 189, 7 Sup. Ct. 1166. See also sec. 60. 
1 Miss., Code, sec. 2272. 

s Ga., Pol. Code, sec. 2622 ; S. Dak., R.C., sees. 3163, 3165. 
* Kans., Acts 1903, ch. 356 ; Conn., G.S., sec. 4516 ; Ind., A.S., sec. 7087i, etc. 
8 Iowa, Code, sec. 4999c; N.Y., C.L., ch. 31, sec. 86 ; Mass., Acts. 1909, ch. 
514, sees. 83, 84. • N.Y., C.L., ch. 31, sec. 81 ; Conn., G.S., sec. 4518., 

7 Ind., A.S., sec. 7087o ; N.J., Acts 1904, ch. 64, sec. 19. 

83 



84 LAW OF THE EMPLOYMENT OF LABOR 

the supply of suitable water for drinking 1 and for humidifying 
the atmosphere. 2 One state prohibits the taking of food into 
rooms in which poisonous or injurious fumes or dusts are pres- 
ent. 3 Toilet rooms and privies may be required, their number 
fixed in proportion to the number and sex of employees, and 
their location and condition prescribed. 4 Where the health of 
the general public is directly involved, as in the manufacture of 
bakery products, 5 of butterine or ice cream, 6 or of clothing, 7 
the regulations may be even more detailed, as by requiring rooms 
to be periodically lime-washed, prohibiting the use of cellars, 
and the like. 

Of like nature with some of the above laws are the laws of a 
few states which have for their object the protection of agri- 
cultural labor where machinery is employed, requiring safe- 
guards on horse powers, 8 or corn huskers or shredders. 9 

Section 39. Steam Boilers. — The inspection of steam boilers 
is sometimes provided for in connection with laws relating to 
factory inspection, 10 but in many states by "separate laws. 11 This 
inspection is for the most part confined to stationary boilers and 
engines, though in a few instances locomotive boilers are in- 
cluded. 12 Marine engines and boilers are required to be in- 

i Mass., Acts 1909, ch. 514, sec. 78; R.I., Acts 1907, ch. 1429. 

2 Mass., Acts 1908, ch. 325. 3 111., Acts 1909, p. 202, sec. 8. 

* Mass., Acts 1909, ch. 514, sees. 79-82, 100 ; Wis., A.S., sees. 1636-31, 
1636-32. 

* Cal., Acts 1909, ch. 104 ; Ind., Acts 1909, ch. 163 ; Pa., B.P. Dig., p. 62. 
6 111., Acts 1907, p. 309. 

I Md., P.G.L., Art. 27, sees. 234-243 ; N.Y., C.L., ch. 31, sees. 100-105. 

8 111., A.S., ch. 70, sec. 3 ; Iowa, Code, sec. 5025. 

9 Mich., Acts 1907, ch. 124 ; Wis., A.S., sec. 1636-131, et seq. 
" Pa., Acts 1905, No. 226, sec. 19. 

II Conn., G.S., sees. 4890 et seq.; Minn., R.L., sees. 2168 et seq. 

" Mass., Acts 1906, ch. 463, Pt. II, sec. 173 ; N.Y., Con. L., ch. 49, sec. 72. 



PHYSICAL CONDITIONS OF EMPLOYMENT 85 

spected, not only by state laws, but by statutes of the United 
States as well. 1 

Section 40. Railways. — In respect of the provisions as to 
locomotive and marine boilers, the interests of the general public 
coincide with those of the employee to support the law, as is the 
case in the matter of safety appliances on railways generally, 
which are likewise the subject of both state and federal legisla- 
tion. These laws relate to the use of automatic couplers, 2 power 
brakes, 3 the blocking of frogs, 4 the installation of telltales or 
warning strings at the approaches to bridges, tunnels, etc., 5 the 
height of wires, bridges, and other construction work across the 
tracks of railroads, 6 the nearness of buildings and other objects 
to the tracks, 7 the equipment of freight cars with grab irons, 
ladders etc., 8 the use of adequate headlights on locomotives, 9 the 
employment of a sufficient crew for the handling of trains, 10 the 
adoption and enforcement of suitable rules to control the oper- 
ation of trains, 11 and other matters conceived to add to the safe 
operation of the roads. Some states authorize the promulgation 
and enforcement of rules by their state railway commissions. 12 

I Minn., R.L., sec. 2173 ; Mich., Acts 1909, No. 113 ; U.S., R.S., 4399 et seq., 
and amending acts. 

* U.S., 27 Stat. 531, Comp. Stat., p. 1374 ; Con. G.S., sec. 3762 ; Mo., Acts 
1907, p. 182. 

» U.S., loc cit.; Del., Acts 1903, ch. 394 ; Ind., Acts 1907, ch. 118. 

* Colo., A.S., sec. 3751d ; Mo., Acts 1907, p. 181 ; Mich., C.L., sec. 6313. 
8 Conn., G.S., sec. 3731 ; N.H., P.S., ch. 159, sec. 26. 

6 Ind., Acts 1907, ch. 118 ; Mich., C.L., sec. 6324. 

7 Ind., loc. cit. 

■ Ind., loc. cit. ; 111., R.S., ch. 114, sec. 226; Mass., Acts 1906, ch. 463, Pt. II, 
sec. 162. 

* Ark., Acts 1907, No. 402 ; Ga., Acts 1908, p. 50 ; Ohio, Acts 1910, p. 330. 
10 Conn., G.S. sec. 3799 ; Wis., A.S. sees. 1809r et seq. 

II Ind., Acts 1907, ch. 272 ; Mich., C.L., sec. 6286/ 
13 Colo., Acts 1907, ch. 208 ; Vt., P.S., sec. 4611. 



86 LAW OF THE EMPLOYMENT OF LABOR 

Street railway employees must be protected from the inclem- 
encies of the weather by the use of inclosed platforms for motor- 
men in a number of states, 1 while a few direct seats to be fur- 
nished for their use. 2 Some also have safety appliance laws 
applicable to such roads. 3 

Section 41. Mine Regulations. — Laws regulating the opera- 
tion of mines, providing for ventilation, means of exit, methods 
of working, the setting and firing of blasts, the use of safety 
lamps, and for the general inspection and supervision of the 
work are found in practically all states within whose boundaries 
mining is carried on. 4 The Congress of the United States 
passed a law of this class, applicable to mines in territories until 
a local law should be passed satisfactorily covering the ground 
of the Federal law. 5 Besides the general provisions noted above, 
the use of speaking tubes or other means of communication may 
be required; and the guarding of hoistways and sumps, the 
supply and placing of timbers, the construction and operation 
of cages for miners and of hoists for coal, the location and quan- 
tity of powder stored in or about the mine, safeguards against 
outbursts of gas and water, and many other details may be 
provided for by the law. 

Section 42. Building Operations. — The dangers involved 
in building operations are contemplated in the laws of a number 
of states, by which the construction, testing, and barricading of 
scaffolds, staging, etc., are regulated, floors required to be filled 
in or planked over within designated distances as the work of 

» Conn., G.S., sees. 3869, 3870 ; Ind., A.S., sec. 5479 ; Iowa, Acts 1909, ch. 51. 
8 Conn., Acts 1909, ch. 237 ; Oreg., Acts 1909, ch. 59. 
» Cal., Pen. Code, sec. 369a ; N.H., Acts 1907, ch. 113. 

< Ala., Code, sees. 999-1037 ; Colo., A.S. sees. 3181-3220 ; 111., R.S., ch. 93 ; 
Ind., Acts 1905, ch. 50 ; Pa., B.P. Dig. p. 1340, et seq. 6 26 Stat. 1104. . 



PHYSICAL CONDITIONS OF EMPLOYMENT 87 

building progresses, or secondary scaffolding required; the 
guarding of hoistways or shafts, and provisions that hoists, 
cranes, and other mechanical contrivances shall be so constructed 
and operated as to protect the life and limbs of employees may 
also be included. 1 The conditions of employment in compressed 
air are set forth with considerable particularity in a law 2 which 
requires decompression locks and medical and toilet rooms to be 
provided. 

Section 43. Accidents. — Appliances for rendering medical 
and surgical aid, as bandages, plasters, absorbent cotton, oil, 
stretchers, blankets, etc., are to be provided for the care of in- 
jured employees in factories and mines, according to the enact- 
ments of several legislatures. 3 

Reports of accidents occurring in mines and factories, some- 
times extending to all places of employment, 4 are required by 
the laws of some states to be made to either an inspector or some 
other official. Special laws are found in some states with ref- 
erence to reporting accidents on railroads. 5 Many of these 
laws contain provisions for the investigation of the cause of the 
accident and the determination of the responsibility therefor. 8 
Such statutes have a close relation to the liability of the em- 
ployer for injuries to his employees, as well as to the matter of 
improving the conditions surrounding employees in their places 

1 Conn., Acts 1907, ch. 152 ; Ohio, Gen. Code, sees. 12576, 12577, 12593 
12594; Wis., A.S., sees. 1636-81 etseq.; 111., Acts 1907, p. 312. 

J N.Y., Acts 1909, ch. 291. 

3 Mass., Acts 1909, ch. 514, sec. 104 ; Mich., Acts 1907, ch. 152, sec. 6 ; 111., 
R.S., ch. 93, sec. 30 ; Ind., Acts 1905, ch. 50, sec. 13 ; Ohio, Gen. Code, sec. 925. 

* 111., Acts 1907, p. 308 ; Ind., A.S., sec. 7087h ; Mo., R.S., sec. 6432. 

5 Ala., Code, sec. 5666 ; Minn., Acts 1907, ch. 290 ; Ohio, Gen. Code, sec. 573. 

•Ind., A.S., sec. 7087h; Tenn., Code, sec. 335; Minn., Acts 1907, ch. 290; 
Pa., B.P. Dig., p. 1356, sees. 196^203 ; U.S., 31 Stat. 1446, C.S., p. 3176. 



88 LAW OF THE EMPLOYMENT OF LABOR 

of work. Some of them direct the inspector to take steps to 
prevent the recurrence of like accidents, and to promote the 
safety or convenience of the public or of employees by requiring 
proper repairs and improvements to be made. 1 

Mere publicity is apparently largely relied upon as a means of 
securing the changes necessary to remedy the defective condi- 
tions, if any, which are found to be the cause of the accident. 
This may be obtained either by publication, 2 or by means of 
reports to the legislature or the governor of the state, 8 or by 
records kept in the books of a state commission. 4 In other 
cases it is provided that the facts disclosed and the names of 
witnesses shall be communicated to the persons injured or to the 
friends of those killed as the result of the accident, which looks 
clearly toward facilitating the recovery of damages ; 5 or the 
law may provide for reports of neglect of duty to be sent to the 
prosecuting officers of the state. 6 The opposite view is taken in 
states in whose law on this subject it is expressly provided that 
the facts obtained in any such report or investigation shall not 
be used at any trial of suits for damages, 7 or in any criminal 
proceeding on account of such accident. 8 

Section 44. Construction and Interpretation of Safety Stat- 
utes. — The basis of these provisions of law, which it is impos- 

1 In mines : Kans., G.S., sec. 4138 ; Minn., Acts 1905, ch. 166 ; Tenn., Code, 
sec. 335. On railroads : Miss., Code, sec. 4870 ; Minn., Acts 1907, ch. 290 ; 
Vt., P.S., sec. 4611 ; N.Y., Con. L., ch. 48, sec. 47. 

2 Ind., Acts 1907, ch. 241 ; Vt., P.S., sec. 4609. 

3 Minn., Acts 1907, ch. 290 ; Wash., Acts 1907, ch. 226. 

* Ala., Code, sec. 5666 ; Ky., Stat., sec. 777 ; Mich., Acts 1907, No. 312. 

6 Conn., G.S., sec. 3800. 

« Ind., Acts 1907, ch. 272 ; Vt., P.S., sec. 4609. 

7 Ind., Acts 1907, ch. 241 ;* Iowa, Acts 1907, ch. 110 ; Mont., Acts 1907, ch. 37, 
sec. 18 ; N.Y., Con. L., ch. 48, sec. 47 ; U.S., 31 Stat. 1446, Comp. St. p. 3176. 

8 Iowa, loc. cit.; Mont., loc. cit. 



PHYSICAL CONDITIONS OF EMPLOYMENT 89 

sible to more than sketch briefly, and which are being changed 
and extended constantly, is the police power of the state, exer- 
cised, in most instances, in behalf of the welfare of its citizens who 
are employed, though in some cases the public welfare in its 
broader sense is obviously concerned. They carry out and are 
supported by the doctrine laid down by the Supreme Court in 
the following language : " It is a principle fully recognized by de- 
cisions of the state and federal courts, that wherever there is any 
business in which, either from the products created or the in- 
strumentalities used, there is danger to life or property, it is not 
only within the power of the states, but it is among their plain 
duties, to make provision against accidents likely to follow in 
such business, so that the dangers attending it may be guarded 
against so far as is practicable." * Nor is it an objection to the 
constitutionality of such laws that they give grounds for actions 
which would be without foundation at common law, since it is 
within the power of the state to change and modify the prin- 
ciples of the common law customarily applicable to the relations 
of employer and employee in accordance with the conception of 
public policy adopted by the legislature in view of existing con- 
ditions. 2 

Of a factory inspection law it was said that it was a police 
regulation for the protection of the lives, health, and morals of 
the employees in factories, and clearly within the power of the 
legislature to enact, so that there could be no doubt of its con- 
stitutionality and validity ; 3 while regulations applying to 
bakeries have regard to the public health, and are within the 

« Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96, 9 Sup. Ct. 28. 
1 Wilmington Star Min. Co. v. Fulton, 205 U.S. 60, 27 Sup. Ct. 412. 
3 State v. Vickens, 186 Mo. 103, 84 S.W. 908 ; State v. Hyman, 98 Md. 596, 57 
Atl. 6 ; Arms v. Ayer, 192 111. 601, 61 N.E. 851. 



90 LAW OF THE EMPLOYMENT OF LABOR 

legislative power on this account. 1 Mine regulations are clearly 
within the reasons of the laws affecting factory labor. 2 Since, 
however, mine labor is known to be especially dangerous and 
exhausting, laws looking to the safety of miners may be sup- 
ported as valid on the ground that the hazards of the employ- 
ment justify a special classification, 3 bringing such laws within 
the rules laid down in the matter of legislation affecting railway 
employment. 4 ' Of these laws, as of the federal safety appliance 
laws, the Supreme Court has said 5 that they do not give the 
mine owner the privilege of reasoning on the sufficiency of ap- 
pliances or on the conditions involving reasonable safety, but 
they fix a standard the maintenance of which becomes the em- 
ployer's imperative duty, from which he cannot be excused 
because some workman may disregard instructions. An em- 
ployer will not be allowed to allege impracticability as an excuse 
for failing to comply with the law, since to do so "would be the 
abrogation rather than the construction of the statute." 6 

As to other laws mentioned above as belonging to this class, 
there is little to be gained by added discussion. Laws for the 
protection of employees on street railways, requiring the pro- 
vision of screens or inclosed vestibules, are constitutional, 7 as 
are those enacted to secure the safety of employees on buildings, 

1 Benz v. Kremer, 142 Wis. 1, 125 N.W. 99. 

» Chicago, W. & V. Coal Co. v. People, 181 111. 270, 54 N.E. 961 ; St. Louis 
Consol. Coal Co. v. Illinois, 185 U.S. 203, 22 Sup. Ct. 616 ; Sommer v. Coal Co., 
89 Fed. 54. 

' Holden v. Hardy, 169 U.S. 366, 18 Sup. Ct. 383 ; Smith v. Woolf, 160 Ala. 
644, 49 So. 395. 

« Missouri P. R. Co. v. Mackey, 127 U.S. 205, 8 Sup. Ct. 1161. See sec. 90. 

» Deserant v. Cerillos Coal R.R. Co., 178 U.S. 409, 20 Sup. Ct. 967. 

• Morris Coal Co. v. Donley, 73 Ohio St. 298, 76 N.E. 945. 

' State r. Whitaker, 160 Mo. 59, 60 S.W. 1068. 



PHYSICAL CONDITIONS OF EMPLOYMENT 91 

being within the reasons of the laws of this class generally. 1 
They are also subject to the construction of law that permits the 
employee to lose the benefit of their intention in those jurisdic- 
tions that permit the employee to assume the risk of his em- 
ployer's failure to conform to the provisions of the statute, 2 
or that declares that an employee continuing to work under 
conditions of such failure bars his right to recovery for resultant 
injuries because of his act in so continuing, by which he assumes 
the risks and may also be guilty of contributory negligence, 3 — 
rulings that confirm the importance of a clear statutory declara- 
tion of the legislative intent in the enactment of laws of this 
class, since otherwise the ordinary citizen is unable to determine 
what are his rights under laws enacted apparently for his bene- 
fit, but seemingly capable of being ignored with impunity. 

With regard to railways, the question arises as to the control 
of interstate commerce by Congress; but unless the field is so 
covered as to exclude state control, matters of intrastate con- 
cern may be regulated by state laws if they do not interfere with 
existing federal statutes. 4 On this view the full crew laws 5 
have been held valid. 6 State laws regulating the use of auto- 
matic couplers, etc., also come within this rule ; 7 as do laws 

1 Stewart v. Ferguson, 34 App. Div. 515 (N.Y.) ; Marshall v. Norcross, 
191 Mass. 568, 77 N.E. 1151. 

8 O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 32 N.E. 1119. 

3 Stewart v. Ferguson, supra. 

* Smith v. Alabama, 124 U.S. 465, 8 Sup. Ct. 564 ; Missouri P. R. Co. v. Flour 
Mills, 211 U.S. 612, 29 Sup. Ct. 214. 

6 Ind., Acts 1907, ch. 11 ; Ark., Acts 1907, No. 116. 

6 Pittsburg, etc., R. Co. v. State, 172 Ind. 147, 87 N.E. 1034 ; Chicago, R.I. & 
P. R. Co. v. State, 86 Ark. 412, 111 S.W. 456, affirmed, 219 U.S. 453, 31 Sup. 
Ct. 275. 

7 Detroit, etc., R. Co. v. State, 82 Ohio St. 60, 91 N.E. 869 ; Larabee v. New 
York, etc., R. Co., 182 Mass. 348, 66 N.E. 1032. 



92 LAW OF THE EMPLOYMENT OF LABOR 

requiring telltales or warning strings over tracks at the approach 
to bridges or tunnels, 1 fixing standards for headlights on loco- 
motives, 2 and similar legislation. 

Section 45. Enforcement — In many of the states having 
laws of this class provision is made for their enforcement by- 
means of special officials or inspectors, as labor bureaus, factory 
inspection offices, and mine bureaus ; while in others this duty 
devolves on such officers as are charged with the enforcement of 
the laws generally. It need hardly be added that -in states of 
the latter class the laws are usually inefficiently enforced. The 
laws of the various states differ in their nature, some being ab- 
solute and mandatory in form, directing certain provisions to be 
made under prescribed conditions, while others commit large 
discretion to the inspecting and enforcing officers. The latter 
laws are open to criticism as offering opportunity for a variety 
of standards as the judgment and disposition of the enforcing 
officials vary. A law that provided that if it appeared to the 
enforcing officer that injurious conditions could, to a great ex- 
tent, be prevented by the use of some mechanical contrivance, 
he should direct that such contrivance be installed, 3 was de- 
clared void on the ground that it imposed on the inspector, not 
the duty of enforcing a law of the legislature, but the power of 
making a law for an individual, and enforcing such rules of 
conduct as he might prescribe, which was an unconstitutional 
delegation of legislative power. 4 

1 Va., Code, sec. 1294-d ; Chesapeake & O. R. Co. ». Rowsey's Adm'r., 108 
Va. 632, 62 S.E. 363. 

* St. Louis, I. M. & S. R. Co. v. White, 93 Ark. 368, 125 S.W. 120 ; Atlantic 
C. L. R. Co. v. State, (Ga.) 69 S.E. 725. 

« Cal., Act of Feb. 6, 1889. 

« Schaezlein v. Cabaniss, 135 Cal. 466, 67 Pac. 755. 



PHYSICAL CONDITIONS OF EMPLOYMENT 93 

At what point the line would be generally drawn by the courts 
is not clear, since much of the detail must of necessity be left to 
the judgment and integrity of the enforcing officers; and such 
expressions are quite common as "in the discretion of the chief 
inspector," l "as the factory inspector may direct," 2 "the in- 
spector shall direct the proper drainage," 3 "if it appears to the 
inspector that such [injurious] inhalation would be substantially 
diminished " ; 4 and to attempt to eliminate discretion entirely 
is obviously impossible. 5 

Section 46. Disobedience of Laws. — The power of the state 
to enact inspection or safety appliance laws of the above classes 
is not questioned as a general proposition, 6 and the failure of an 
employer to comply therewith has been held to be negligence 
per se in cases where injury befalls an employee by reason of such 
failure; 7 nor does the employee, in such a view of the law, 
assume the risks occasioned thereby. 8 In other courts such 
failure is classed only as evidence of negligence, 9 in which view 
the question of assumption of risks can be raised. 10 The statute 

1 Ind., A.S., sec. 7087i. * Conn., Acts 1905, ch. 13. 

» 111., Acts 1907, p. 309. < Mass., Acts 1909, ch. 514, sec. 84. 

* Arms v. Ayer, 192 III. 601, 61 N.E. 851 ; St. Louis Consol. Coal Co. t>. Illi- 
nois, 185 U.S. 203, 22 Sup. Ct. 616. 

« City of New York v. Miln, 36 U.S. 71, 11 Pet. 102; People v. Smith, 108 
Mich. 527, 66 N.W. 382 ; State v. Vickens, 186 Mo. 103, 84 S.W. 908 ; State v. 
Hyman, 98 Md. 596, 57 Atl. 6. 

7 Klatt v. Lumber Co., 97 Wis. 641, 73 N.W. 563 ; Evansville Hoop & Stave 
Co. v. Bailey, 43 Ind. App. 153, 84 N.E. 549. 

8 U.S. Cement Co. v. Cooper, 82 N.E. 981 (Ind. App.) ; Narramore v. R. Co., 
96 Fed. 298 ; Western Furniture Co. v. Bloom, 76 Kans. 127, 90 Pac. 821. 

• Pitcher v. N.Y., etc., R. Co., 127 N. Y. 678, 28 N.E. 136 ; Jupiter Coal Min. 
Co. v Mercer, 84 III. App. 96. 

«> Knisley v. Pratt, 148 N.Y. 377, 42 N.E. 986 ; O'Maley v. South Boston Gas 
Light Co., 158 Mass. 135, 32 N.E. 1119 ; Denver & Rio Grande R. Co. v. Gannon, 
40 Colo. 195, 90 Pac. 853 ; Same v. Norgate, 141 Fed. 247. 



94 LAW OF THE EMPLOYMENT OF LABOR 

may declare failure to comply with the law prima facie evidence 
of negligence, or that the employee assumes only the risks that 
remain after the employer has complied with the laws calling 
for safety appliances. 1 

The better reason seems to be with the view that disobedience 
causing injury is negligence, since to permit the employee to 
assume the risks of his employer's non-compliance with the 
statute is practically to allow him to enter into a contract of 
waiver both as to the provisions of the law and as to his rights 
thereunder, which amounts to allowing the employer and em- 
ployee to determine what is public policy, disregarding the 
legislative determination embodied in the law. 2 The right so 
to do is indeed maintained in a case in which it was held that if 
the proprietor, although failing to provide the statutory instal- 
lation, had yet provided one equally safe and convenient, he had 
performed his duty under the statute. 3 The Supreme Court 
enounces a contrary rule in a case involving this principle, hold- 
ing that no one can urge against a system or method fixed by 
statute one of his own adoption and challenge a comparison 
between them without virtually denying the police power of the 
state in this behalf. 4 

The argument to the contrary is that a rule under which it is 
not possible for the employee to waive the protection of the 
statute and assume the risks of his employer's known failure to 
comply with its provisions establishes a liability unknown to the 
common law. "There is no rule of public policy which pre- 
vents an employee from deciding whether, in view of increased 

1 Colo., A.S., sec. 3751e ; N.Y., Con. L., ch. 31, sec. 202. 

* Narramore v. R. Co., supra. 

* Gorman v. McArdle, 51 N.Y. St. 248, 22 N.Y. Supp. 479. 

* District of Columbia v. Brooke, 214 U.S. 138, 29 Sup. Ct. 560. 



PHYSICAL CONDITIONS OF EMPLOYMENT 95 

wages, the difficulties of obtaining employment, or other suffi- 
cient reasons, it may not be wise and prudent to accept employ- 
ment subject to the rule of obvious risks. The statute does, 
indeed, contemplate the protection of a certain class of laborers, 
but it does not deprive them of their free agency and the right 
to manage their own affairs.' ' 1 

The law, however, contemplates this protection by way of 
prescribed methods and instrumentalities, with reference to the 
use of which the discretion of the employer is eliminated, in 
order that the statutory standard may be maintained in all 
establishments alike; and it is difficult to reconcile the assump- 
tion of risks in cases of violation of the statute with that rule of 
law that condemns waivers of the employer's liability in advance 
of the receipt of the injury. 2 Nor is it clear how a view that 
insists that assumption of risks is a matter of law, imposed on 
the employee "regardless of the desires of the master or the 
servant," 3 is supported by an argument that adduces the prin- 
ciples of "free agency and the right to manage their own af- 
fairs." 4 No fact is more frequently reiterated, moreover, in 
any review of labor legislation than that it is no longer the in- 
tention of the state to leave employer and employee to the 
untrammeled exercise of their free agency, so-called, but that 

1 Knisley v. Pratt, supra. See, however, a recent opinion by the same court 
(Rhodes v. Sperry, etc., Co., 193 N.Y. 223, 85 N.E. 1097), in which it was said 
that the fact that a law created a liability unknown to the common law was no 
objection to its constitutionality, as the legislative power was not so limited. 
The plea of assumption of risks is now abolished in New York, where the injury 
resulted from the employer's failure to comply with safety statutes. C.L., ch. 
31, sec. 202. See Persons v. Bush Terminal Co., 125 N.Y. S. 277, 68 Misc. Rep. 
573. » Sec. 73. 

1 Denver & R.G.R. Co. v. Norgate, supra. 

4 Knisley v. Pratt, supra. 



96 LAW OF THE EMPLOYMENT OF LABOR 

its bounds are to be fixed for the sake of the general welfare of 
the whole people. 1 

I Statutes are not wanting that formally enlarge the liability at 
common law by abrogating the defense of assumed risks 2 or of 
contributory negligence, 3 or both, as in some of the laws cited, 
where the employer ignores the law as to safety appliances; and 
under the view that assumption of risks is a matter of contract, 
it would appear that the laws prohibiting contracts of waiver 
of the provisions of statutes must necessarily be construed as 
barring this defense ; so also of laws that give to an employee 
injured by reason of the failure of the employer to conform to the 
requirements of the statute the same rights of recovery as if he 
were not an employee, 4 since it is only of an employee that it 
could be said under any circumstances that he assumed the 
risks of another's undertaking. A well known text writer has 
said : — 

"When the legislature of a state or the council of a municipal 
corporation, having in view the promotion of the welfare or the 
safety of the public or of individual members of the public, 
commands or forbids the doing of a particular act, the general 
conception of the courts, and the only one that is reconcilable 
with reason, is that a failure to do the act commanded, or doing 
the act prohibited, is negligence as mere matter of law, otherwise 
called negligence per se, and this irrespective of all questions of 
the exercise of prudence, diligence, care, or skill, so that if it is the 

1 See "Police power," sec. 5. 

> 111., Acts 1905, p. 350, sec. 9 ; Ind., A.S., sec. 5173c, Acts 1907, chs. 118, 131 ; 
Iowa, Code, sec. 2083, Acts 1907, ch. 181 ; Mass., R.L., ch. Ill, sec. 209 ; U.S., 
27 Stat. 531, Comp. St. p. 3174. 

8 Miss., Code, sec. 4051 ; Mo., Acts 1907, p. 181 ; Ohio, Gen. Code, sees. 
8945, 8955. 

* Mass., Acts 1909, ch. 614, sec. 127 ; Miss., Const., Art. 7, sec. 193. 



PHYSICAL CONDITIONS OF EMPLOYMENT 97 

proximate cause of hurt or damage to another, and if that other 
is without contributory fault, the case is decided in his favor." 1 

There is, however, a strong list of cases on the other side of 
this question, holding that the employee may assume the risks 
of such disobedience of the law by his employer. 2 

A statute prescribing certain protective arrangements and 
abrogating the defense of contributory negligence, imposing 

1 1 Thompson Neg. sec. 10. For an extended and interesting discussion of 
these points see Caspar v. Lewin, 82 Kans. 604, 109 Pac. 657. 

» Denver & R.G.R. Co. t>. Gannon, 40 Colo. 195, 90 Pac. 853, and cases cited ; 
2 Labatt M. & S., sec. 650, 21 A. & E. Enc. Law, 478 ; 6 L.R.A. (N.S.) 981. The 
importance of clear legislative declaration as to the intent of the law is empha- 
sized by a comparison of the citations found in the above sources, with which 
may be taken those given in Western Furniture & Mfg. Co. v. Bloom, 76 Kans. 
127, 90 Pac. 821. The situation in a state without such a declaration is set forth 
in Minnesota, whose law (R.L. sec. 1813) directs dangerous machinery and appli- 
ances to be fenced or otherwise protected "as far as practicable." In constru- 
ing the law the supreme court of the state held that on a showing that a guard is 
practicable, its omission constitutes negligence (Callopy v. Atwood, 105 Minn. 
80, 117 N.W. 238), described in Swenson c. Osgood & Blodgett Co. (91 Minn. 
509, 98 N.W. 645) as negligence per se. The duty of proving practicability de- 
volves on the plaintiff. (Glockner v. Hardwood Mfg. Co., 109 Minn. 30, 122 
N.W. 465.) In another case it was stated that the statute was merely declara- 
tory of the common law. (Bredeson v. Lumber Co., 91 Minn. 317, 97 N.W. 977.) 
This view was said in a later case to be obiter, and that the statute did in fact 
change the common law so as to make it negligence in law or per se not to guard 
dangerous machinery where it was practicable to guard it, though the defenses 
of assumed risks and contributory negligence remain as at common law (David- 
son v. Flour City Works, 107 Minn. 17, 119 N.W. 483 ; Glockner v. Hardwood 
Mfg. Co., 109 Minn. 30, 123 N.W. 807), and the plaintiff was denied recovery in a 
case in which it was held that he was guilty of contributory negligence in using 
an unguarded saw which it was practicable to guard. (Parker v. Lumber Co., 
85 Minn. 13, 88 N.W. 261.) It is said, however, that it is only where reasonable 
minds could clearly draw but one conclusion from the undisputed evidence that 
the question of assumption of risks should be decided by the court ; and the 
mere fact that a workman knew that a dangerous machine was not guarded 
was not sufficient to take the case from the jury on this point. (Shaver v. 
Lumber Co., 109 Minn. 376, 123 N.W. 1076.) 



98 LAW OF THE EMPLOYMENT OF LABOR 

an absolute liability for injuries resulting from non-compliance 
with its provisions x has been declared constitutional ; 2 so also 
of one that modifies the defense by providing for the determina- 
tion of degrees of negligence, introducing the doctrine of com- 
parative negligence. 3 

Section 47. Sufficient Compliance. — While an inspector's 
certificate of approval of installations and appliances may be 
admitted as prima facie evidence of compliance with the statute, 
it is not conclusive, and an injured employee may overthrow 
the presumption raised thereby by means of suitable proof. 4 
In the construction of the federal statute relative to railroad 
equipment and maintenance, the Supreme Court has enforced 
a rule of strict compliance. Thus it is not sufficient that coup- 
lers used in a train shall couple automatically when used with 
others of the same make, but they must couple automatically 
with those in use in the train as actually constituted. 5 Fur- 
thermore, the height fixed for drawbars must be maintained 
at the employer's own hazard, the duty being an absolute one, 
and not being capable of discharge by the use merely of reason- 
able care, or by its delegation to competent persons to whom the 
necessary supplies are furnished. The legislature having pre- 
scribed conditions of appliances, the employer's discretion no 
longer controls, and nothing less than the legislative require- 

*Wis., A.S., sec. 1810. 

2 Quackenbush v. R. Co., 62 Wis. 411, 22 N.W. 174. 

3 Nebr., Acts 1907, ch. 48 ; Missouri P. R. Co. v. Castle, 172 Fed. 841 (C.C.A.). 
See further, sec. 77. 

4 Vosberg v. Lumber Co., 45 Wash. 670, 89 Pac. 168. See per contra, Pauley v. 
Steam Gauge & Lantern Co., 131 N.Y. 90, 29 N.E. 999, in which the inspector's 
certificate was held to relieve the employer, though the instrumentality (a fire 
escape) did not conform to the law, and was accessible only with great effort and 
risk. « Johnson v. Southern P. R. Co., 196 U.S. 1, 25 Sup. Ct. 58. 



PHYSICAL CONDITIONS OF EMPLOYMENT 99 

ments will be regarded as reasonable care in the circumstances. 1 
It is not enough to have proceeded in the direction of a 
compliance, as by providing an inadequate light when the 
statute requires one that will distinctly disclose the surround- 
ings. 2 And it has been held that it is not permitted to plead 
good faith where an inspection has actually been made by proper 
persons, whose judgment was that a working place did not 
require marking as dangerous, though subsequent events showed 
that it was in fact dangerous. 3 The employer is liable in such 
case as for a willful violation of the law, since whether or not an 
adequate inspection has been made is not within the province 
of the employer to decide, but is a question for the jury. 

Section 48. Sale of Liquor to Employees. — As detrimental to 
the interests of the parties to a labor contract, the establishment 
of saloons or other places for the sale of intoxicants at or near 
construction camps is prohibited in one state ; 4 and this law 
has been held to be a reasonable exercise of the police power of 
the state in view of the mischief likely to follow the activities of 
itinerant vendors of intoxicants. 5 Other statutes authorize 
employers to forbid the sale of intoxicants to designated em- 
ployees, 6 or prohibit the use of intoxicants on any engine, car, 
or train propelled by steam or electricity, except in a buffet or 
dining car ; 7 or forbid the bringing of intoxicants into any mine, 
smelter, machine shop, or sawmill. 8 

* St. Louis, I. M. & S. R. Co. v. Taylor, 210 U.S. 281, 28 Sup. Ct. 616. 
2 Eldorado Coal & Coke Co. v. Swan, 227 111. 586, 81 N.E. 691. 
a Aetitus v. Coal Co., 246 111. 32, 92 N.E. 579. 

< Cal., Acts 1909, ch. 413. 8 Ex parte King, 157 Cal. 161, 106 Pac. 578. 

« Minn., Acts 1909, ch. 198 ; Mass., R.L., ch. 100, sec. 63 ; Ohio, Gen. Code, 
sec. 6203 ; S. Dak., Acts 1903, ch. 165. 

7 Ohio, Gen. Code, sec. 13,196. s Wyo., Acts 1909, ch. 32. 



CHAPTER V 

EMPLOYMENT OP WOMEN AND CHILDREN 

Section 49. Special Regulations. — It is an incident of 
modern industry that a special body of laws has been formulated 
relating to the employment of women and children. The 
common law left them or those who had them under legal con- 
trol to make such contracts of employment as they saw fit, or 
rather, perhaps, as they were constrained to make from the 
force of circumstances. At the present time, in nearly every 
jurisdiction are to be found laws fixing the age below which 
children cannot be employed, the limit ranging from twelve to 
sixteen years. Exemption may be made in cases of orphanage, 
of poverty, or of dependence of parents ; also as regards speci- 
fied employments, such as farm labor and the canning 
and preserving of fruits. Labor in mines is prohibited for 
women and children in a number of states, the age limit for 
children frequently being higher in this than in other em- 
ployments. Factories and workshops, or these and mercantile 
establishments, are most frequently designated as forbidden 
places of employment for children in industry ; while still more 
numerous laws prohibit classes of occupations, designated as 
injurious or immoral, such as employment for acrobatic exhi- 
bitions, as pedlars, in barrooms, for mendicant purposes, and 
the like. There is sometimes a list of designated dangerous 

100 



EMPLOYMENT OF WOMEN AND CHILDREN 101 

factory employments, including the cleaning of moving machin- 
ery, the operation of elevators, and of certain kinds of rolls, 
presses, etc. In some states these laws include females in a part 
or all of their prohibitions, laws of this class being in effect 
special extensions of the laws relating to the inspection of fac- 
tories and workshops. 

Numerous laws have been enacted restricting absolutely the 
hours of labor of children, 1 or of women, 2 or of both, 3 laws of the 
third class being most common. These laws have a double 
aspect, the public being concerned in the question of a healthful 
citizenship, as well as in the protection of classes of individuals 
who are in a sense under the particular protection of the state. 4 
Limitations may also be made in the matter of night work. In 
some states eight hours is the maximum day's work allowed for 
children, 5 while a more common limit is nine or ten hours, reach- 
ing as high as eleven in one instance. 6 The range of night work 
prohibited also varies, as from six p.m. to seven a.m., 7 seven p.m. 
to six a.m., 8 seven p.m. to seven a.m., 9 to the less favorable 
limit of from nine p.m. to six a.m., 10 or even ten p.m. to six a.m. 11 

The required proof of age is usually either by affidavit or 
certificate, including in the latter case a transcript of the birth, 

1 Cal., Acts 1905, ch. 18 ; Ind., A.S., sec. 7087a ; Ala., Code, sec. 6430. 

* Ore., Acts 1907, ch. 200 ; Wash., Acts 1901, ch. 68. 

" Mass., Acts 1909, ch. 514, sec. 48 ; Conn., Acts 1907, ch. 251 ; N.J., G.L., p. 
2350. 

* Muller v. State, 208 U.S. 412, 28 Sup. Ct. 324 ; Com. v. Hamilton Mfg. Co., 
120 Mass. 383 ; People v. Ewer, 141 N.Y. 129, 36 N.E. 4 ; State v. Shorey, 48 
Ore. 396, 86 Pac. 881. 

5 111. R.S. ch. 48, sec. 20 ; Colo., Supp., sec 2801e ; Neb., Acts 1907, ch. 66. 

* N.C., Acts 1907, ch. 463. 

7 Mich., Acts 1901, ch. 113 ; Ore., Acts 1905, ch. 208. 

8 Mass., Acts 1909, ch. 514, sec. 56. • Minn., Acts 1907, ch. 299. 
10 Idaho, Acts 1907, p. 248. u Cal., Acts 1907, ch. 524. 



102 LAW OF THE EMPLOYMENT OF LABOR 

school records, or other documents. The regulations as to 
employment sometimes vary for the time during the vacation 
of school from those in force during the school term, and for 
illiterates as compared with literate children. The detail and 
variety of the laws of this class, and the constant modification 
of them in the various states, make an analytical account of them 
impracticable in a work that contemplates only a general survey 
of the laws relating to labor. 1 

The right of the state to protect children in employment is 
practically universally recognized in respect of all the points 
named. 2 It has been said that "so far as such regulations 
control and limit the powers of minors to contract for labor, 
there never has been and never can be any question as to their 
constitutionality/ ' 3 Laws affecting safety and sanitation in 
establishments where women are employed are likewise gen- 
erally approved ; 4 but laws limiting the hours of labor of women 
have been held to be unconstitutional in a few instances, on the 
ground that they interfered with the freedom of citizens to 
contract, infringing on the present-day equality of rights of 
women with those of men. 5 In a later case in one of these courts 
a law limiting the labor of women in certain employments to ten 



1 See, for example, 111., R.S., ch. 48, sees. 20-20m ; Mass., Acts 1909, ch. 514, 
sees. 56-77 ; Ore., Acts 1905, ch. 208 ; Minn., Acts 1907, ch. 299, Acts 1909, 
ch. 499 ; N.Y., C.L., ch. 31, sees. 60-93. 

2 Ex parte Spencer, 149 Cal. 396, 86 Pac. 896 ; Bryant v. Skillman Hardware 
Co., 76 N. J.L. 45, 69 Atl. 23 ; Starnes v. Mfg. Co., 147 N.C. 556, 61 S.E. 525 ; 
State v. Shorey, supra. 

3 1 Tiedeman, State and Federal Control, p. 335, citing People v. Ewer, supra. 
* Wenham v. State, 65 Nebr. 394, 91 N.W. 421 ; Com. v. Beatty, 15 Super. Ct. 

(Pa.) 5. 

6 Ritchie v. People, 155 111. 98, 40 N.E. 454 ; People v. Williams, 189 N.Y. 131, 
81 N.E. 778. See also Tiedeman, loc. cit. 



EMPLOYMENT OF WOMEN AND CHILDREN 103 

hours per day x has been held constitutional as a health regu- 
lation for the good of the race. 2 In the Williams case, a law 
prohibiting night work by women was declared unconstitutional 
by a New York court on the ground that it was not a health 
law, but a labor law, and unduly discriminatory between citizens, 
the court remarking that woman is no more the ward of the 
state than is man. The act was specifically condemned 
because it not only sought to regulate the hours of labor of 
women, but it absolutely prohibited her employment for any 
time, however brief, between certain hours of the night. But 
even the concession indicated by this statement would 
not save the law from condemnation by a court that 
regarded the liberty of contract as the paramount con- 
sideration. In most courts, 3 including the Supreme Court 
of the United States, however, the view is taken that laws 
of this nature are within the police power of the state as health 
regulations, sex distinctions warranting a discrimination between 
men and women engaged in like occupations, " having in view 
not merely her own health, but the welfare of the race." 4 A 
law limiting the hours of labor of females in industrial employ- 
ments, not applying to work in canning establishments, was 
said not to be unconstitutional by reason of this exception. 5 
The same principle that supports the foregoing laws would 
support the laws found in a majority of the states directing 
employers to furnish seats for female employees and to permit 

« 111., Acts 1909, p. 212. 

J W. C. Ritchie & Co. v. Wayman, 244 111. 509, 91 N.E. 695. 

•Com. v. Hamilton Mfg. Co., supra; Wenham v. State, supra; State v. 
Buchanan, 29 Wash. 602, 70 Pac. 5 ; State v. Muller, 48 Ore. 252, 85 Pac. 855 ; 
Muller v. State, supra. 4 Muller v. State, supra. 

« Withey v. Bloem, 163 Mich. 419, 128 N.W. 913. 



104 LAW OF THE EMPLOYMENT OF LABOR 

their reasonable use. 1 One state has such a law requiring seats 
to be supplied for the use of children. 2 

Section 50. Effect of Unlawful Employment on the Employer's 
Liability. — The effect on the employer's liability of his dis- 
regard of the laws forbidding the employment of children is on 
much the same footing with that of other violations of statutory 
provisions affecting employment conditions. 3 Thus some 
courts hold that the employment of a child under statutory age, 
who is injured in the course of his prohibited employment, is 
negligence per se on the part of the employer ; 4 while in others 
it is regarded only as evidence of negligence. 5 In the former 
view, the unlawful employment resulting in injury supports an 
action for damages, in which it has frequently been held that the 
defenses of assumed risks and contributory negligence, cannot 
be offered; 6 and even where it is only evidence of negligence, it 
has been said that if the jury finds from all the evidence that the 
employment was negligence, and that injury resulted there- 
from, there can and should be a recovery in the case ; 7 while in 
the Marino case, the court refused to allow the defenses of 
assumed risks and contributory negligence. In another juris- 
diction, it was made the ground of reversal of the judgment of 

1 Ala., Code, sec. 6857 ; Conn., G.S., sec. 4703 ; Iowa, Code, sec. 4999 ; Pa., 
B.P. Dig., p. 902. 

2 Okla., Acts 1909, p. 629, sec. 6. 3 See sec. 46. 

* Leathers v. Tobacco Co., 144 N.C. 330, 57 S.E. 11 ; American Car Co. v. 
Armentraut, 214 III. 509, 73 N.E. 766 ; Smith's Admr. v. Coal & Iron Co., 135 
Ky. 671, 117 S.W. 280 ; Lore v. Mfg. Co., 160 Mo. 608, 61 S.W. 678. 

6 Stehle v. Jaeger Automatic Machine Co., 220 Pa. 617, 69 Atl. 1116 ; Marino t>. 
Lehmaier, 173 N.Y. 530, 66 N.E. 572. 

• But see per contra, Darsam v. Kohlmann, 123 La. 164, 48 So. 781. 

7 Stehle v. Jaeger Automatic Machine Co., supra; see also same case, 225 
Pa. 348, 74 Atl. 215, and Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, 67 
Atl. 642, in which both defenses were disallowed. 



EMPLOYMENT OF WOMEN AND CHILDREN 105 

a lower court because the trial judge had held that the doc- 
trine of assumed risks had no application in a case in which 
a child thirteen years of age was injured in the course of his 
employment ; l while in a similar case the decision of the same 
judge was to the effect that a child under fourteen years of age 
is presumed to be incapable of assuming the risks of employ- 
ment, though the matter is one for the jury. 2 In neither of the 
last two cases was a statute violated, the presumption being one 
of common law. Where a statute prohibits the employment of 
a child under a fixed age, the child's or his parent's misrepresen- 
tation is no defense in an action against the employer for injury 
resulting from the unlawful employment, 3 and evidently a con- 
trary ruling would allow unlimited violation of the law. The 
fact that a child had been employed before the law was enacted 
in no way removes him from its operation when it comes into 
effect. 4 

The fact of the subordination of the child to the parent and 
of the parent's interest in the child's earnings gives rise to the 
rule of law that where injury results to the child, the parent may 
recover damages for the loss he himself suffers on account of the 
interruption to or diminution of the child's earning capacity, 
the recovery being limited in this respect to the value of such 
services during minority. 5 The parent in making the contract 
assumes the risks of the particular employment for which the 



1 Alexander v. Carolina Mills, 83 S.C. 17, 64 S.E. 914. 

J Owens v. Laurens Cotton Mills, 83 S.C. 19, 64 S.E. 915. 

3 Kirkham v. Wheeler-Osgood Co., 39 Wash. 415, 81 Pac. 869 ; American Car 
Co. v. Armentraut, supra. 

* Stehle v. Automatic Machine Co., 225 Pa. 348, 74 Atl. 215. 

6 Union P. R. Co. v. Fort, 84 U.S. 553, 21 L. Ed. 739 ; Shields v. Yonge, 15 Ga. 
356, 60 Am. Dec. 698. 



106 LAW OF THE EMPLOYMENT OF LABOR 

contract was made, but of that only ; so that if the child is 
directed to perform other duties and is injured thereby, the de- 
fense of assumed risks will not be allowed against the parent's 
claim. 1 This claim and recovery by the parent for damages 
is independent of the child's right to recover for personal in- 
juries, and separate recoveries may be had for the two elements 
of damage. 2 

Section 51. Wages of Married Women and Minors. — At 
common law a married woman entering service was assumed to 
be hired out by her husband, so that her earnings belonged to 
him; but most states now give married women the right to 
their earnings as their individual property. 3 So also of minors, 
who are unable to make valid contracts, generally speaking, 
and whose earnings belong to the parent unless it can be made to 
appear that they have been emancipated, or that the parent has 
failed in the discharge of the parental duties. Legislation has 
modified these rules of the common law in a number of states, 
so that the payment of their earnings to minors is valid unless 
or until notice is given by the parent or guardian that he claims 
such earnings. 4 One state 5 provides that the wages of a minor 
shall be exempt from garnishment or other process on account 
of the debts of the parent. 

In this connection may be mentioned laws found in a few 
states providing penalties for able-bodied parents who hire out 

1 Union P. R. Co. v. Fort, supra ; Braswell v. Cotton Oil Mill Co., 7 Ga. App. 
167, 66 S.E. 539. 

2 Stehle v. Jaeger Automatic Machine Co., 225 Pa. 348, 74 Atl. 215. 

3 111., R.S., ch. 58, sec. 7 ; Mass., R.L., ch. 153, sec. 4 ; N.Y., C.L., ch. 14, sec. 
60. 

* Cal., Civ. Code, sec. 212; Minn., R.L., sec. 1812 ; N.Y., C.L., ch. 14; sec. 
72. 6 Va., Code, sec. 3652c. 



EMPLOYMENT OF WOMEN AND CHILDREN 107 

their minor children and live in idleness on their earnings ; l the 
hiring out of wives is coupled with that of children in Louisiana 
and North Carolina. The laws generally provide for the pun- 
ishment of the delinquent parent as a vagrant. 

Laws of which it must be said that their reason and validity 
seem doubtful are found in a very few jurisdictions making 
special provisions relative to the wages of women; as, for in- 
stance, one prohibiting deductions from their wages on account 
of the stoppage of machinery unless they are allowed to leave 
the factory, 2 or one that declares no property exempt in case of 
a judgment for wages earned by a female, if the judgment and 
costs do not exceed a specified sum ; 3 special allowances of costs 
are also made. No good reason appears why distinctions 
should be made between adult females and other adults in regard 
to such matters. 

1 Ala., Code, sec. 7843 ; Ga., Acts 1905, p. 109 ; La., Acts 1904, No. 178 ; 
Miss., Code, sec. 5055 ; N.C., Rev., sec. 3740 ; Tenn., Acts 1907, ch. 256 ; Texas, 
Acts 1909, ch. 59 ; Va., Code, sec. 884. 

2 Mass., Acts 1909, ch. 514, sec. 119. 

a Mich., C.L., sec. 900; N.Y., Code Civ. Pro., sec. 3131. The New York 
law applies to Brooklyn only, and gives execution against the person. 



CHAPTER VI 

RESTRICTIONS ON EMPLOYEES 

Section 52 ? Examination, Registration, etc., of Workmen. — 
The conditions and requirements of certain occupations are 
such that the welfare of fellow workmen or of the public or of 
both is dependent on the experience and technical ability of the 
employee. Thus in mining, it has been declared the policy of 
the state in several jurisdictions to require certain employees, 
as managers, mine foremen, fire bosses, and hoisting engineers, 
to prove their qualifications by passing an examination and 
giving proof of experience, after which a certificate is issued, 
without which employment in the designated capacity is pro- 
hibited. 1 Such laws also penalize an employer who hires 
employees of these classes without their having the proper creden- 
tials. The second class of laws named, i.e., affecting the public 
only, is represented by laws requiring barbers to be examined 
and procure licenses ; 2 while both the fellow servant and the 
public are interested in the efficiency of railway employees. 
Laws relating to them may contemplate, among other qualifi- 
cations, physical incapacity, as color blindness of employees 
whose duties require them to distinguish signals ; 3 or they may 

1 Ala., Code, sees. 1006, 1007; 111., Acts 1907, p. 387; Ind., Acts 1905, ch. 
50, sees. 21, 22 ; Mo., Acts 1903, p. 242. 

« Md., Acts 1904, ch. 226 ; Wis., A.S., sees. 1636-18 to 1636-30 ; Mich. Acta 
1899, No. 212 ; Ore., Acts 1903, p. 27. 

• Ala., Code, sees. 5481-5483, 7655 ; Mass., Acts 1906, ch. 463, Pt. II, sec. 
179 ; Ohio, Gen. Code, sec. 12,648. 

108 



RESTRICTIONS ON EMPLOYEES 109 

look merely to the technical skill and experience needed by a 
telegraph operator whose duties are connected with the move- 
ments of trains. 1 

Other classes of employees coming within regulations of this 
sort are horseshoers, 2 plumbers, 3 electricians, 4 elevator opera- 
tors, 5 stationary firemen, 6 steam engineers, 7 street railway 
employees, 8 and, in some states, all coal miners. 9 

Section 53. Status of Certified Employees. — The objects in 
view in the enactment of these laws are various, as their wide 
range would indicate. That foremen in charge of gaseous mines 
should be competent, or that mine managers and other em- 
ployees having special duties affecting safety should be able to 
prove their fitness for their positions is no less important than 
that places and appliances should conform to a reasonable 
standard of safety. 10 Courts have taken radically different 
views as to the status of such certified employees as the law 
compels to be put in charge of work or places. Thus, the law 
of 1891 of the state of Pennsylvania, requiring the employment 
of certified mine foremen, contained the provision that for in- 

1 Ga., Code, sec. 2237. 

» Colo., A.S., sees. 2801t-2801z ; Minn., R.L., sees. 2354-2356. 
» Cal., Sims' G.L., Nos. 2838, 2839 ; 111., R.S., ch. 24, sees. 498-504 ; Mass., 
R.L., ch. 103 ; Pa., Acts 1909, No. 657. 

• Minn., R.L., sees. 2357-2364 ; La., Acts 1908, No. 178. 
5 Minn., R.L., sec. 761. 

• Mass., R.L., ch. 102, sees. 78-86 ; Mont., Pol. Code, sees. 560 et seq., 
Acts 1905, ch 32. 

7 Ala., Code, sec. 7091 ; Minn., R.L., sees. 2174, et seq. ; Ohio, Acts 1910, 
p. 361 ; Pa., B.' Dig., p. 535, Acts 1905, No. 75. 

» N.Y., Con. L., Ch. 49, sec. 63 ; Wash., Acts 1901, Ch. 103. 

• 111., Acts 1909, p. 284 ; Pa., B. Dig., p. 448 (in anthracite mines only). 

» Wilmington Star Min. Co. v. Fulton, 205 U.S. 60, 27 Sup. Ct. 412 ; Henrietta 
Coal Co. v. Martin, 221 111. 460, 77 N.E. 902 ; State v. Murlin, 137 Mo. 297, 38 
S.W. 923. 



110 LAW OF THE EMPLOYMENT OF LABOR 

juries to person or property caused by violations of the act by 
such mine foremen, the company should be liable in damages. 
In the trial of an action under this provision, * the supreme court 
of the state declared this provision unconstitutional, holding 
that the compulsory employment of a certified employee took 
out of the hands of the employer his discretion and therefore his 
responsibility in the matter. The mine foreman was held to 
be the representative of the state, for whose incompetency, if 
any, the employer could not be made legally responsible. He 
was also held to be but a fellow servant of the miners, and in no 
sense the employer's vice-principal, the declaration of the stat- 
ute to the contrary notwithstanding. This view is followed 
in other jurisdictions, the court stating in one instance that 
when the employer had complied with the law by employing a 
certified mining boss, no liability attaches for the tortious and 
negligent acts of the latter. 2 

The divergency of views held in different jurisdictions in 
regard to the common law doctrine of vice-principalship is noted 
elsewhere, 3 and it is but natural that this divergence should 
affect the construction of statutes that are quite similar in phrase- 
ology. The Illinois doctrine of vice-principalship differs from 
that accepted in Pennsylvania, and in a case in which the same 
point as that above discussed was being considered by the Illinois 
supreme court under a law of practically the same form, the 
court reviewed the Durkin and Williams cases, and rejected the 

1 Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237. See also Golden t>. 
Coal Co. 225 Pa. 164, 73 Atl. 1103. 

1 Williams v. Thacker Coal & Coke Co., 44 W. Va. 599, 30 S.E. 107, citing 
14 A. & E. Enc. Law, 809; McMillan v. Coal & Coke Co., 61 W. Va. 531, 57 
S.E. 129 ; Coal Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251. 

» See sees. 82-88. 



RESTRICTIONS ON EMPLOYEES 111 

doctrine therein laid down, holding that the duties of inspection 
and management were the employer's, which he might himself 
perform if qualified, otherwise to be performed through some 
other person who has been able to obtain a certificate ; but being 
still the master's duties, he is responsible for the negligent per- 
formance of them, whether by himself or by his agent. 1 The 
fact that he is required to employ a manager who is certified by 
the state was held to be without significance as relieving him 
from responsibility, as the employer was under no obligation 
to employ or retain any particular individual, and could dis- 
charge for cause of incompetence or otherwise, the effect of the 
law being simply to eliminate the obviously unfit, and to form 
a class from which the employer might reasonably expect to 
procure a fit representative in this respect, but not to enable him 
to shift his responsibility to his employees by reason of the act. 2 
This view and construction of the law were adopted by the 
Supreme Court in a case 3 in which this point was under con- 
sideration in an action arising under the Illinois statute, and it 
seems clear that such a rule is both better law and better reason. 
The statute may explicitly put the matter at rest by declaring 
that the manager or foreman provided for by the act shall be 
regarded as the representative of the mine owner, and not as 
the fellow workman of the miners, 4 such an enactment being 
clearly within the power of the state legislature. 5 

1 Henrietta Coal Co. v. Martin, 221 111. 460, 77 N.E. 902. 

2 See further Consol. Coal Co. ». Seniger, 179 111. 370, 53 N.E. 733 ; Smith v. 
Dayton Coal & Iron Co., 115 Tenn. 543, 92 S.W. 62 ; Poli v. Coal Co., (Iowa) 
127 N.W. 1105. 

» Wilmington Star Min. Co. v. Fulton, 205 U.S. 60, 27 Sup. Ct. 412. 
* Tenn., Acts 1907, ch. 540. 

5 Wilmington Star Min. Co. v. Fulton, supra; Western U. Tel. Co. v. Milling 
Co., 218 U.S. 406, 31 Sup. Ct. 59. In the latter case it was said that "The com- 



112 LAW OF THE EMPLOYMENT OF LABOR 

Section 54. Grounds for Legislative Interference. — The law 
of Pennsylvania requiring all miners in anthracite mines to have 
certificates of competency has been judicially enforced as a 
measure to secure the safety of the employees. 1 

Laws classifying stationary engineers and requiring them to 
procure licenses are held constitutional 2 on the ground that they 
are a police regulation designed to secure public safety by re- 
quiring only competent persons to be entrusted with the control 
of dangerous and widely used instrumentalities ; though a law 
of Ohio, providing that if on examination an applicant was 
found to be trustworthy and competent, a license should issue, 3 
was declared unconstitutional as interfering with the rights of 
citizens and affecting their equality, as well as conferring auto- 
cratic power on the examiner, for whom the legislature had fixed 
no standard. 4 

In the matter of railroad employees, the question of uncon- 
stitutional interference with interstate commerce was raised in 
a case that arose under an earlier statute of Alabama that ap- 
plied only to locomotive engineers. The supreme court of the 
state and of the United States overruled the contention, holding 
that the law was but a reasonable exercise of the police power of 
the state, and not a commerce law. 6 The present law extends 

mon law did not become a part of the laws of the states of its own vigor. It has 
been adopted by constitutional provision, by statute or decision, . . . but 
however adopted, it expresses the policy of the state for the time being only, and 
is subject to change by the power that adopted it." 

1 Com. v. Shaleen, 215 Pa. 595, 64 Atl. 797. 

2 State v. McMahon, 65 Minn. 453, 68 N.W. 77 ; Hyvonen v. Hector Iron 
Co., 103 Minn. 331, 115 N.W. 167. 3 Acts 1900, p. 33. 

* Harmon v. State, 66 Ohio St. 249, 64 N.E. 117. 

« McDonald t>. State, 81 Ala. 279, 2 So. 829 ; Smith v. Alabama, 124 U.S. 465, 
8 Sup. Ct. 564. 



RESTRICTIONS ON EMPLOYEES 113 

the test as to color blindness to trainmen, trackmen, switchmen, 
and train dispatchers, and has been construed in the same 
manner as the more limited law. 1 A provision in the earlier 
law that required the railroad company to pay the fees for the 
examinations was declared unconstitutional by the state court, 2 
though the Supreme Court of the United States 3 upheld in its 
entirety a statute embodying this provision as to the payment 
of fees. A law prescribing the length and grade of service of 
various classes of employees prior to their appointment or pro- 
motion 4 was declared unconstitutional by the supreme court of 
Ohio 5 in a memorandum adopting the opinion of the court 
below, 6 in which it was said that the law affected unequally 
employees in the same class of service, and was therefore repug- 
nant to the constitution ; but whether or not in any particular 
instance a law of this class is aptly drawn, or proper provisions are 
incorporated for its enforcement, it does not seem open to ques- 
tion that the power of the state cannot be held to fall short of 
prescribing standards of ability and competence in matters 
affecting the public welfare. 

Within these reasons fall the laws which restrict the practice 
of plumbing to workmen who have been able to prove compe- 
tency and secure licenses to prosecute their trade ; 7 though it has 
been held that inspection and not a restrictive licensing law is the 
proper method of reaching the desired end, 8 a law of the latter 

1 Nashville, etc., R. Co., v. Alabama, 128 U.S. 96, 9 Sup. Ct. 28. 

2 Louisville & N. R. Co. v. Baldwin, 85 Ala. 619, 5 So. 311. 

3 Nashville, etc. R. Co. v. Alabama, supra. 

* Ohio, Acts 1893, p. 20. 

6 State v. Cleveland, etc., R. Co., 70 Ohio St. 506, 72 N.E. 1165. 

• 26 Ohio C. C. Rep. 348. 

7 Douglas v. People, 225 111. 536, 80 N.E. 341 ; Davidson v. State, 77 Md. 
388, 26 Atl. 415. » State v. Smith, 42 Wash. 237, 84 Pac. 851. 

I 



114 LAW OF THE EMPLOYMENT OF LABOR 

class being in this case declared unconstitutional. How far 
such laws may properly go is, indeed, a question not yet decided, 
nor is it easy of decision. The law relating to the licensing of 
horseshoers, for instance, has repeatedly been held to be an 
unwarranted and arbitrary interference with the liberty of the 
citizen and his right of private property. 1 The same language 
was used in a case in which a law licensing plumbers was under 
consideration, 2 though such a view is without doubt opposed 
to the better opinion, since such an employment too closely 
affects the welfare of the public to demand that it shall not be 
subject to proper restrictions as to its practice. 3 

In the case of barbers there is usually coupled with the ques- 
tion of skill that of personal freedom from contagious and in- 
fectious diseases, and of such knowledge of the more common 
affections of the skin as will enable them to shave one suffering 
from them without aggravating their condition ; so that there 
is here clearly in view the protection of the public health. The 
board of examiners is also frequently a board of inspection as 
to the conditions maintained in shops. Within the range of 
health provisions, these laws command support under the police 
power of the state. 4 Where, however, under the guise of regu- 
lation, provisions are introduced whose apparent intent is to 
restrict the practice of the trade by unreasonable requirements 
and limitations, such provisions will be declared uncon- 

1 Bessette v. People, 193 111. 334, 62 N. E. 215 ; People v. Beattie, 89 N. Y. 
Supp. 193, 96 App. Div. 383 ; In re Aubry, 36 Wash. 308, 78 Pac. 900. 

1 State v. Smith, supra. 

8 Caven v. Coleman (Tex. Civ. App.), 96 S.W. 774 ; State v. Gardner, 58 Ohio 
St. 599, 51 N.E. 136. 

* State v. Briggs, 45 Ore. 366, 77 Pac. 750; Ex parte Lucas, 160 Mo. 218, 61 
S.W. 218 ; State v. Sharpless, 31 Wash. 191, 71 Pac. 737 ; State v. Zeno, 79 Minn. 
80, 81 N.W. 748. 



RESTRICTIONS ON EMPLOYEES 115 

stitutional, Such was the case in a law prohibiting the granting 
of a certificate to aliens, 1 and one making two years' study as an 
apprentice under a qualified barber, or practice for a like period 
as a qualified barber a prerequisite to the granting of a certifi- 
cate ; 2 but a law was upheld which required applicants to pass 
an examination before receiving a certificate unless they had 
practiced as barbers for two years in the state prior to the mak- 
ing of their application, a total of two years without and within 
the state being held not to satisfy the provision. 3 

The statute of Texas on this subject 4 was held to be uncon- 
stitutional 5 both as violating the provision of the constitution 
of the state that exempts mechanical pursuits from an occupa- 
tion tax, and as making discrimination between students work- 
ing their way as barbers at the state university, barbers at the 
eleemosynary institutions of the state, and barbers in towns of 
less than one thousand population (all of whom are exempt 
from the application of the law), and all other barbers, who 
must procure certificates or forego practice. 

The entire subject of examination and licensing, as is true of 
the whole subject of the regulation of the conditions of employ- 
ment, is affected by the development of industry in its modern 
forms, and the corresponding growth of ideas of public policy. 
The contractor for work no longer does it himself, and neither 
fellow servants nor the employer are able to observe and guard 
against the negligent acts of unskillful workmen as may easily 
have been the case in days of small undertakings and intimate 

1 Templar v. State Board, 131 Mich. 254, 90 N.W. 1058. 

» State v. Walker, 48 Wash. 8, 92 Pac. 775. 

3 Wasa v. State Board, 123 Mich. 544, 82 N.W. 234. 

* Acts 1907, ch. 141. 

« Jackson v. State, 55 Texas Cr. App. 557, 117 S.W. 818. 



116 LAW OF THE EMPLOYMENT OF LABOR 

relationships between workmen and employer. The remark of 
the court in the Pennsylvania case relative to the compulsory 
employment of a certified mine foreman, that it is as if the state 
were saying, " You cannot be trusted to manage your own busi- 
ness ; left to yourself, you will not properly care for your own 
employees," J is more and more the attitude of the state, and is 
being approved by legislatures and courts alike as the necessary 
viewpoint in a time when great corporations and deputed 
directive agents are so largely in evidence in the conduct of 
industry. The law indicates to the individual a standard that 
has been fixed upon as the result of the collective experience of 
the many, with something of the inevitable bias of ex parte 
determination eliminated, and it cannot be questioned that the 
condition of both employer and employee is the better for such 
provisions. The fact remains that a just ground for interven- 
tion must appear, and that the rights of liberty and property 
may not be arbitrarily infringed upon under the guise of either 
health or safety regulations, or for the alleged prevention of 
fraud or oppression where the parties concerned are sui juris and 
on a reasonably equal footing. 

A simple and clearly defensible law is one that forbids the 
employment on railway engines of illiterate engineers. 2 One 
state applies this rule to flagmen, hostlers, and assistant host- 
lers. 3 

Section 55. Age as Condition of Employment. — Among 
other conditions that may be embodied in statutes determining 
the fitness of employees for certain duties is that of age, as of 

1 Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237. 

2 Minn., R.L., sec. 4999 ; N.Y., C.L., ch. 40, sec. 1982 ; Wash., Acts 1909, 
ch. 249, sec. 274. » Ohio, Gen. Code, sec. 12,551. 



RESTRICTIONS ON EMPLOYEES 117 

telegraph operators, 1 elevator operators, 2 mine foremen, 3 and 
the like. The reasons for such laws are for the most part dif- 
ferent from those limiting the employment of young children, 
as the classes of persons covered are those whose acts and dis- 
cretion involve the safety of others quite as much as their own 
welfare. 4 The reasonableness of such regulations is apparent, 
coming within that of other provisions looking to the safety of 
workmen. 5 The employer may make such rules of his own 
volition, and it has been held that an employee who misrepre- 
sents his age to evade the regulation is not entitled to recover 
damages if he is injured in the course of his employment, being 
no better than a trespasser. 6 The better reason, however, rests 
with the view that the employer is relieved of liability only if 
the age is a cause of the injury; 7 but while the employment 
continues, there is a relation of master and servant subsisting, 
and a corresponding liability for negligence toward such an em- 
ployee, the contract being voidable but not void. 8 

A statute that prohibits the discharge of any person between 
the ages of eighteen and sixty solely on account of age 9 may be 
mentioned in this connection. 

Section 56. Resident Laborers — Aliens. — Laws that have 

» Colo., A.S., sec. 1396a ; N.Y., C.L., ch. 40, sec. 1982. 

* Mass., Acts 1909, ch. 514, sec. 74. 

8 Mont., Acts 1909, ch. 69 ; Mo., Acts 1903, p. 242. 

* Moran v. Dickinson, 204 Mass. 559, 90 N.E. 1150. 
1 Moran v. Dickinson, supra. 

e Norfolk & W. R. Co. v. Bondurant, 107 Va. 515, 59 S.E. 1091. 

» McDermott v. Iowa Falls, etc. R. Co., 47 N.W. 1037 (Iowa) ; Lupher v. 
Atchison, T. & S. F. R. Co., 81 Kans. 585, 106 Pac. 284 ; Denver & R. G. It. Co. v. 
Reiter, 47 Colo. 417, 107 Pac. 1100. 

8 Lake Shore & M. S. R. Co. v. Baldwin, 19 Ohio Cir. Ct. R. 338 ; Lupher v. 
Atchison, T. &. S. F. R. Co., supra; Matlock v. Williams ville, etc., R. Co., 198 
Mo. 495, 95 S.W. 849. » Colo., A.S., sec. 2801c2. 



118 LAW OF THE EMPLOYMENT OF LABOR 

regard for the interests of local or resident labor are to be found 
in a number of states, particularly as regards public service. 
Belonging to this class are laws directing public printing to be 
done within the state. 1 Evidence of combination or great dif- 
ference of cost gives officers a right to accept bids from outside 
the state, though in one case local printers are allowed a margin 
of fifteen per cent over outside competitors. 2 Of like purpose 
are laws directing a preference of domestic over foreign prod- 
ucts as supplies for public use, 3 and of resident laborers as em- 
ployees on public works. 4 This latter provision may be extended 
to a prohibition of the employment of aliens on such under- 
takings ; 5 or, more specifically, of Chinese or persons of Mon- 
golian descent. 6 The statute of Nevada goes so far as to declare 
the forfeiture of the charter of any railroad company or other 
corporation employing Chinese for the construction of any 
public works, while a provision of the constitution of California 7 
prohibited their employment by any corporation in any capacity. 
In the construction by the courts of laws of this class, it has 
been held that the law of New York directing a preference of 
resident laborers is not binding on contractors on municipal 
undertakings ; 8 while the law of California prohibiting the 
employment of Chinese, enacted in accordance with the pro- 

iAla., Code, sec. 1657; Colo., Supp., sec. 804b; 111., R.S., ch. 127, sec. 13; 
Tenn., Acts 1907, ch. 593. 2 N. Dak., R.C., sec. 2282. 

« Cal., Acts 1897, ch. 149 ; N. Dak., R.C., sec. 1290 ; U.S., R.S., sees. 69, 1829. 

* Mass., Acts 1904, ch. 311; N.Y., Con. L., ch. 31, sec. 14; N. Mex., Acts 
1905, ch. 124. 

*Cal., Polit. Code, sec. 2545, Sims' G.L., No. 127; Mass., loc. tit.; N.Y., 
loc. tit.; N.J., Acts 1899, ch. 202. 

6 Cal., Const., art. 19, sec. 3 ; Mont., Acts 1903, ch. 114; U.S., 32 Stat. 389 
(irrigation works only) ; Nev., C.L., sees. 5004-5006. 7 Art. 19, sec. 2. 

s People v. Warren, 13 Misc. 618, 34 N. Y. Supp. 942. 



RESTRICTIONS ON EMPLOYEES 119 

visions of the constitution above noted, were, with these pro- 
visions themselves, held to be unconstitutional and void, both 
as violating the provisions of the treaty with China and as con- 
flicting with the fundamental law expressed in the fourteenth 
amendment to the federal Constitution ; l so of a statute of 
Oregon prohibiting the employment of Chinese'on public works ; 2 
and in general, laws discriminating against aliens or non-resi- 
dents are not favored by the courts, since the fourteenth 
amendment is held to protect with its equality clause all persons 
in the United States, without regard to citizenship. 3 Thus the 
law of Pennsylvania restricting employment on public works 
to citizens was held not to be a defense in an action by aliens to 
recover wages earned by them, though their employment was in 
violation of the act, 4 and a New York statute directing the pref- 
erence of citizens on municipal undertakings has already been 
mentioned as not binding on contractors; the same view 
was taken by the courts of Illinois with reference to a similar 
law. 5 A law of New York 6 which prohibited the use of stone 
on public works of the state except that dressed or worked 
within the state was held to be unconstitutional as an inter- 
ference with interstate commerce. "The citizens of the state 
have the right to enter the markets of every other state to sell 
their products or to buy whatever they need, and all interference 
therewith by state legislation is void." 7 Of a somewhat dif- 



1 In re Parrott, 1 Fed. 481, 6 Sawyer 349. 

2 Baker v. Portland, 5 Sawyer 566. 

■ Yick Wo v. Hopkins, 118 U.S. 356, 6 Sup. Ct. 1064. 
* Philadelphia v. McLinden, 205 Pa. S. 172, 54 Atl. : 719. 
6 City of Chicago v. Hulbert, 205 111. 346, 68 N.E. 786. 
« Acts 1897, ch. 415, sec. 14. 
» People v. Coler, 166 N.Y. 144, 59 N.E. 776. 



120 LAW OF THE EMPLOYMENT X)F LABOR 

ferent nature, but falling under the ban of unconstitutionality 
like the rest, was a law of Michigan providing for the licensing 
of barbers, but withholding licenses from aliens, 1 the law being 
declared repugnant to the provisions of the fourteenth amend- 
ment. 2 Since neither in public employments nor in those regu- 
lated by the state can such discriminations be supported, a 
fortiori, they would fail in efforts to regulate purely private 
contracts. 

There is, however, a law of this class which, being enacted by 
the Congress of the United States on a subject as to which it 
admittedly has authority to act, has been uniformly sustained 
and enforced, i.e., the law prohibiting the importation of alien 
contract labor. 3 State laws bearing on the subject in some 
aspects have been passed in a few cases. Thus a law of Dela- 
ware provides for contracts by state agents with laborers in 
foreign countries for importation for agricultural employment, 4 
while laws of Virginia 5 and Wyoming 6 declare that contracts 
with alien laborers shall be valid in those states for limited 
periods. A statute of Indiana prohibits the importation of 
aliens under contract. 7 Inasmuch as the whole matter falls 
within the powers of Congress, all state legislation in conflict 
with federal laws is pro tanto void. 

A law that favors local mechanics in a matter not involving 
the use of public funds is one requiring railroads operating in 
the state to maintain repair shops therein for the repair and 

1 Acts 1899, No. 212. 

> Templar v. Board, 131 Mich. 254, 90 N.W. 1058. 

« 34 Stat. 898. Chinese Exclusion Case, 130 U.S. 581, 9 Sup. Ct. 623 ; Lees 
v. U.S., 150 U.S. 476, 14 Sup. Ct. 163. 

* Acts 1907, ch. 116. 6 Code, sees. 44-48. 

• R.S., sec. 2520. 7 A.S., sees. 7079 et seq. 



RESTRICTIONS ON EMPLOYEES 121 

rebuilding of its rolling stock. 1 The validity of such laws, in 
view of the decisions above cited, is to say the least doubtful. 
Private employment is touched upon by other laws directed to 
the subject of alien labor, as one requiring employers of aliens 
to deduct the taxes due from such employees from their wages ; 2 
and laws looking to the protection of the wages of aliens as a 
class of people ignorant of the language and customs of the 
country, and thus easily liable to imposition. 3 A law that 
taxed the employers of alien laborers, allowing them to deduct 
the tax from the wages of such employees, 4 was declared uncon- 
stitutional as violative of the guarantees of the fourteenth 
amendment, such a statute being a discrimination against the 
employment of aliens, whether the tax be deducted from their 
wages or paid by the employer himself. 5 

A construction of statutes that affects aliens adversely is 
that which deprives non-resident beneficiaries in some juris- 
dictions of the benefits of the so-called Lord Campbell's Act, or 
the statute which grants to the heirs or personal representatives 
of persons killed by the negligence of another a right of recovery 
against the responsible person. This is not strictly a labor law, 
but is of general application, and has gone far to ameliorate the 
condition of the surviving families of the victims of industrial 
accidents. Where the dependents of a deceased alien workman 
are non-residents, the courts of some states deny to them the 
benefits of this law on the ground that the legislature acts for 

» La., Acts 1908, No. 296 ; Texas, Acts 1909, ch. 33. 

* Pa., Acts 1897, ch. 108. 

* Conn., G.S., sec. 4607; Wyo., R.S., sec. 2521. 
« Pa., Acts 1897, No. 139. 

» Fraser v. McConway & Torley Co., 82 Fed. 257; Juniata Limestone Co. v. 
Fagley, 187 Pa. St. 193, 40 Atl. 977. 



122 LAW OF THE EMPLOYMENT OF LABOR 

citizens, or at most for residents of the state, and that its powers 
do not extend beyond its borders ; also that its own citizens 
employed abroad would not be afforded protection in like cir- 
cumstances. 1 The more common, and certainly the more 
humane view, is that the negligent employer should be called 
upon to repair to some extent the injury caused by his negli- 
gence, and that the remedial nature of the statute was not in- 
tended to be restricted by the incident of the residence of the 
beneficiary. 2 

Section 57. Convict Labor. — An attempt to modify com- 
petition with local labor, and specifically with free labor, is made 
in many states 3 by laws limiting the labor of convicts to the 
manufacture of supplies for the use of the state or to labor on 
public works and ways, or by requirements limiting the number 
of convicts that shall be employed in the manufacture of desig- 
nated articles or classes of articles, or prohibiting the manufac- 
ture of certain kinds of goods altogether, by forbidding the use 
of any machinery in manufacture except such as is operated by 
hand or foot power, and by requiring that convict-made goods 
shall be so marked, or that dealers in them shall be specially 
licensed. Such laws are not, strictly speaking, labor laws, as 
they affect neither employer nor employee in their relations to 
each other, but are of an economic intent, seeking to modify 
the effects of the competition of convict with free labor. In so 

i Deni v. P.R. Co., 181 Pa. 525, 37 Atl. 558 ; McMillan v. Spider Lake S. & L. 
Co., 115 Wis. 332,91 N.W. 979. 

» Mulhall v. Fallon, 176 Mass. 266, 57 N.E. 386 ; Alfson v. Bush, 182 N.Y. 
393, 75 N.E. 230 ; Kellyville Coal Co. v. Petraytis, 195 111. 215, 63 N.E. 94 ; Low 
Moor Iron Co. v. Bianca's Adm'r., 106 Va. 83, 55 S.E. 532 ; Renlund v. Mining 
Co., 89 Minn. 41, 93 N.W. 1057. 

a 111., R.S., ch. 108; Minn., R.L., sees. 5446-5449 ; N.Y., Con. L., eh. 31, art. 
13; Ohio, A.S., sees. 7388-85, 4400-1 to 4400-10; Mass., R.S., ch. 225, etc. 



RESTRICTIONS ON EMPLOYEES 123 

far as they relate only to the employment and management of 
convicts as laborers, the public has no grounds, as a rule, for 
intervening; but where the rights of citizens are affected, as 
by restrictions on the sale of goods purchased from prison manu- 
factories, or made in prisons under contract, a question as to 
restrictions on commerce arises. This is particularly the case 
where the goods are transported outside the state of manufac- 
ture, and thus acquire a status as articles of interstate commerce, 
which is strictly and exclusively under the control of the federal 
government. It was on this basis that laws of New York 1 and 
Ohio, 2 discriminating against goods of prison manufacture, 
were declared unconstitutional. 3 

i Acts 1894, ch. 698 ; Acts 1896, ch. 931. * Acts 1894, p. 346. 

3 People v. Hawkins, 85 Hun. 43, 32 N. Y. Supp. 524 ; same case, 157 N.Y. 1, 51 
N.E. 257 ; Arnold v. Yanders, 56 Ohio St. 417, 47 N.E. 50. 



CHAPTER VII 

THE LIABILITY OF EMPLOYERS FOR INJURIES TO THEIR 
EMPLOYEES 

Section 58. What Law Controls. — Although the English 
common law lies at the foundation of our doctrine of employers' 
liability, this doctrine is continually undergoing change, both 
by the rulings of state and federal courts and by the enactment 
of numerous statutes passed with a view to a more exact defi- 
nition of the rights of the employee or to some amelioration of 
his condition in other respects. The principles of the common 
law are so differently interpreted in the various jurisdictions 
that state names are given to certain applications of them, in- 
dicative of a locally recognized view which is not in accord with 
the generally accepted construction of the law, while the statutes 
range in form and effect from a mere restatement of the common 
law to an abrogation of it in some more or less inclusive degree, 
and the enactment of rules varying considerably both from it 
and from the statutes of other states. 

Section 59. Duty of the Employer to Exercise Care. — The 
two principal factors of the problem of liability are the duty of 
the employer to protect his employee in the discharge of the 
duties of his employment, and the assumption by the employee 
of the risks involved in the undertaking in which his contract 
of employment engages him. The duty of the employer is first 

124 



LIABILITY OF EMPLOYERS FOR INJURIES 125 

considered, but it will be found impossible to discuss it without 
constantly bearing in mind the modifications that result from 
the existence of the complementary obligations that rest upon 
the employee. 

The briefest statement of the rule governing the employer is 
that he is required to use due care for the safety of his employees 
while they are engaged in the performance of their work. This 
is taken to include all reasonable means and precautions, the 
facts in each particular case being taken into consideration. If 
such provisions have been made as a reasonably prudent man 
would supply if he himself were exposed to the dangers of the 
servant's position, no negligence would appear. In the case of 
corporations the Supreme Court fixes the duty at the use of such 
caution and foresight as a corporation controlled by careful, 
prudent officers ought to exercise. 1 

Though the courts of review have condemned any instruc- 
tions that would tend to charge the employer with a higher 
degree of care than that which may be defined as ordinary, the 
measure is not an absolute one, but is proportioned to the 
dangers to which the employee is exposed. The ordinary in- 
cidents of railroading, mining, and certain classes of manufac- 
turing are in themselves, in comparison with general employ- 
ments, unusually dangerous; and so of a large railroad yard 
as compared with a smaller one, an express train as compared 
with a freight train, or a gaseous mine with one in which no such 
dangers exist. In such cases as these, or when temporarily 
abnormal conditions prevail, ordinary care is advanced far 
beyond the requirements of the less dangerous conditions. As 
stated by the Supreme Court in a consideration of this question, 

1 Wabash R. Co. v. McDaniels, 107 U.S. 454, 2 Sup. Ct. 932. 



126 LAW OF THE EMPLOYMENT OF LABOR 

occupations, no matter how important, if necessarily dangerous, 
should be prosecuted only after the adoption of all reasonable 
precautions known to science. The necessary attendant danger 
should operate as a prohibition to the prosecution of such under- 
takings without such safeguards, and the neglect to provide all 
known and readily obtainable appliances will be regarded as a 
proof of culpable negligence. 1 On the other hand, care may 
lawfully be relaxed if the risk is unusually slight or if a device 
is for a specific and transitory use. The general rule as to care 
is qualified by the youthfulness or inexperience of an employee, 
a greater degree of care being commonly required for the pro- 
tection of such persons ; nor is the master relieved by the fact 
that a servant of tender years misrepresented his age in order to 
secure the employment. 2 

Section 60. Place and Instrumentalities. — In accordance 
with the rule as to due care, the obligation rests on the master 
to supply tools and appliances that are reasonably safe for the 
intended use and reasonably well adapted to perform the work 
in contemplation. These must be provided at the place of use, 
or at a place of such ease of access as to be reasonably procur- 
able. 

Closely related is the duty to provide a safe place to work and 
proper material for use, the measure still being not absolute, but 
reasonable or adequate safety. The distinction between place 
and appliance is not an easy one to draw, though the courts are 
stricter in their requirements as to the former than to the latter. 
Thus, if a scaffold furnished by an employer be regarded as a 
place to work, he is responsible not only for the materials sup- 

i Mather v. Rillston, 156 U.S. 391, 15 Sup. Ct. 464. 

« Am. Car & Foundry Co. v. Armentraut, 214 111. 509, 73 N.E. 766. 



LIABILITY OF EMPLOYERS FOR INJURIES 127 

plied, but also for the construction and maintenance ; while if 
it be viewed only as an appliance, he must make reasonable 
provision therefor; but its insufficiency, if such there be, may be 
laid to the account of the fellow workmen of an injured em- 
ployee, or perhaps to his own negligence in erection. 1 

The doctrine that the employer is bound to safeguard his 
employees from exposure to needless and unreasonable risks is 
subject to the general qualification that one has the right to 
carry on a business which is dangerous, either in itself or be- 
cause of the manner in which it is conducted, provided it does 
not interfere with the rights of others, without incurring liability 
to a servant who is capable of contracting and who knows the 
dangers attendant on employment in the circumstances. 2 A 
brief statement of the rule is that the employer has a right to 
exercise a reasonable judgment and discretion in the conduct 
of his affairs, and it is said that it would be a very extraordinary 
case indeed in which this right would be interfered with. 3 This 
does not, however, permit the use of unreasonably dangerous 
appliances nor those which are in themselves defective or so 
obsolete and inferior that their adoption or retention would of 
itself indicate negligence, 4 though the question is held to be one 
not of comparative safety, but of reasonable safety. No fixed 
rule of liability is possible, therefore, in this respect, each case 
being of necessity decided on its own merits. 

Section 61. Standards of Care Fixed by Statute. — Where a 
standard is fixed by statute, as for the safeguarding of the opera- 

i Butler v. Townsend, 126 N.Y. 105, 26 N.E. 1017 ; Hoveland v. National 
Blower Works, 134 Wis. 342, 114 N.W. 795. 

s Tuttle v. Detroit, etc., Ry., 122 U.S. 189, 7 Sup. Ct. 1166. 

3 Tuttle v. Detroit, etc., Ry., supra. 

< Choctaw, O. & G. R. Co. v. McDade, 191 U.S. 64, 24 Sup. Ct. 24. 



128 LAW OF THE EMPLOYMENT OF LABOR 

tions of mining, the provision and maintenance of fire escapes, 
of guards for dangerous machinery, or of safety couplers and 
other devices and appliances on railway trains, railroads, etc., 
the violation of such statutes resulting in the injury of any 
person entitled to be protected thereby is construed by the 
better authority to be an act of negligence, though it is some- 
times held to 4 be only evidence of negligence. 1 That the failure 
to comply with the statute is negligence would seem hardly to 
be disputable, since, as was said in the Mosgrove case cited 
above, " every person, while violating an express statute, is a 
wrongdoer, is ex necessitate negligent in the eyes of the law"; 
or, as an English judge phrased the same rule, " where an abso- 
lute duty is imposed on a person by statute, it is not necessary, 
in order to make him liable for breach of that duty, to show 
negligence." 

In a number of cases, the laws making such requirements 
provide in terms that a failure to comply therewith makes an 
employer liable in damages for all injuries caused by such fail- 
ure, which is but a declaration of the rule laid down in the quo- 
tations given above. In other cases the statute only provides a 
penalty for its violation, and does not in terms give an injured 
employee a right of action, though the injury may be traceable 
to the omission of the device prescribed by the law. The weight 
of authority gives a right of action in such cases. 2 According 
to the rule of common law that the employee does not assume 

1 Compare Mosgrove v. Zimbleman Coal Co., 110 Iowa 169, 81 N.W. 227; 
Krause v. Morgan, 53 Ohio St. 26, 40 N.E. 886 ; St. Louis, I. M. & S. R. Co. v. 
Taylor, 210 U.S. 281, 28 Sup. Ct. 616, with Pitcher v. New York, etc., R. Co., 
127 N.Y. 678, 28 N.E. 136 ; Jupiter Coal Min. Co. v. Mercer, 84 111. App. 96. 

* Harrod v. Latham, 77 Kans. 466, 95 Pac. 11 ; Freeman v. Paper Mill Co., 61 
Hun 125, 15 N.Y. Supp. 657 ; Klatt v. Lumber Co., 97 Wis. 641, 73 N.W. 563. 



LIABILITY OF EMPLOYERS FOR INJURIES 129 

the risk of his employer's negligence, 1 it would follow that in a 
suit for damages where a statute had been violated, the em- 
ployer would be debarred from pleading that the employee had 
assumed the risk of the injury, and it has been so held, 2 though 
not uniformly. 3 Here again statutes have been enacted in 
support of what appears to be the better rule, and the employer 
violating the statute cannot plead assumption of the risk by the 
injured employee. 4 It has even been held that the negligent 
employer could not offer to prove that the employee was guilty 
of contributory negligence, 5 and this doctrine too has been 
enacted into law in a few instances. 6 

Compliance with statutory regulation will not operate as a 
defense where the conditions are still so dangerous as to support 
a charge of negligence against the employer. 7 On the same 
basis, it has been held, where the statute prescribes the condi- 
tion in which a working place is to be maintained, that it is not 
sufficient that the employer has put the matter into the hands 
of a subordinate to attend to, but he must perform or have 
performed the specific thing required by the statute if the 
charge of negligence is to be avoided. 8 

1 See sec. 72. 

1 Davis v. Mercer Lumber Co., 164 Ind. 413, 73 N.E. 899 ; Landgraf v. Kuh, 
188 111. 484, 59 N.E. 501 ; Jones v. Caramel Co., 225 Pa. 644, 74 Atl. 613. 

« Bodell ». Brazil Block-Coal Co., 25 Ind. App. 654, 58 N.E. 856 ; Sutton v. 
Bakery Co., 135 Iowa 390, 112 N.W. 836; Knisley v. Pratt, 148 N.Y. 377, 42 
N.E. 986. 

* Iowa, Acts 1907, ch. 181 ; Ohio, Gen. Code, sec. 6243 ; N.Y., Acts 1910, ch. 
352 ; also provisions restricted in application to the statutes containing them, in 
many other states. 

s Kellyville Coal Co. v. Strine, 217 111. 516, 75 N.E. 375. 

"111., Acts 1905, p. 350, sec. 9; Miss., Code, sec. 4051 ; Mo., Acts 1907, pp. 
181, 182. 

7 Chesapeake & O.R. Co. v. Rowsey's Adm'r., 108 Va. 632, 62 S.E. 363. 

8 Sommer v. Carbon Hill Coal Co., 89 Fed. 54. 

K 



130 LAW OF THE EMPLOYMENT OF LABOR 

Section 62. Repair and Maintenance. — The same care is 
required of the master in maintaining as in furnishing safe and 
suitable appliances. 1 Inasmuch, however, as the progress of 
work and the use of tools produce constantly changing condi- 
tions, the doctrine that reasonably safe places and appliances 
must be provided is frequently modified by the statement that 
the duty has been discharged when ordinary or reasonable care 
has been exercised in the effort to make such provision. 2 The 
continued employment of tools that are so worn as to increase 
the danger of their use will in general entail liability on the 
employer. If, however, the danger is an obvious one, the em- 
ployee, continuing to work with a knowledge of the danger and 
without complaint, will be considered to have assumed the risk, 
and in case of injury has no recovery ; nor will liability attach 
until the employer has or reasonably could have information of 
the defect requiring repair. 

An important decision by the Supreme Court puts at rest a 
question on which opinions differed, i.e., as to the standard of 
care to be exercised in cases where a statutory duty was pre- 
scribed. It had been held that the common law rule was not 
superseded by the federal statute providing for the equipment 
and maintenance of safety couplers on railroad cars, the court 
ruling that the use of reasonable and ordinary care and diligence 
relieved the employer, 3 while in another case in which the same 
law was under consideration, it was ruled that the duty of keep- 
ing the appliances in order was an absolute one, 4 a view that was 

1 Moore v. Wabash, St. L. & P. R. Co., 85 Mo. 588. 

2 Anderson v. Michigan C. R. Co., 107 Mich. 591, 65 N.W. 585; Reed v. 
Stockmyer, 20 C. C. A. 381, 74 Fed. 186. 

* Missouri P. R. Co. v. Brinkmeier, 77 Kans. 14, 93 Pac. 621. 

* Delk v. R. Co. See St. Louis, etc., R. Co. v. Delk, 158 Fed. 931, 934 (C. C. A.). 



LIABILITY OF EMPLOYERS FOR INJURIES 131 

rejected by the appellate court. A similar case reached the 
Supreme Court, where it was held that the duty was an absolute 
one, and that deviation from the standard was negligence, the 
rule of " reasonable care" having been abrogated by the statu- 
tory requirement as to adjustment and repair. 1 

Section 63. Customary Method or Use. — The employer is 
not liable to an employee for an injury incurred by a departure 
from the customary method of performing work or by leaving 
the place of his employment to work in some other department 
unless on instructions from a properly authorized representa- 
tive. 2 So if a more dangerous method or place of work is chosen 
when one less dangerous was available, the resultant injury, if 
any, does not charge the employer with liability. 3 The same 
rule applies where an instrumentality is put to a different use 
by the employee from that for which it was intended, with a 
resultant injury to himself. 4 

Section 64. Inspection. — The duty of making repairs nec- 
essarily involves the duty of discovering the need for them as it 
may arise, which entails the duty of inspection. The inspection 
required for maintenance differs somewhat from that necessary 
or presumed at the time a new plant or new tools are first brought 
into use. As to the latter, it may first be stated that an em- 
ployer who makes and supplies an instrumentality is chargeable 
with such a knowledge of its defects as ordinary care during the 
course of such manufacture would have disclosed. In case of 
purchase, the duty of inspection may ordinarily be assumed to 
have been discharged by the manufacturer, though a showing 

i St. Louis, I. M. & S. R. Co. v. Taylor, 210 U.S. 281, 28 Sup. Ct. 616. 
8 Stagg v. Edward Western Tea & Spice Co., 169 Mo. 489, 69 S.W. 391. 
■ Wormell v. Maine C. R. Co., 79 Me. 397, 10 Atl. 49. 
* McKay v. Hand, 168 Mass. 270, 47 N.E. 104. 



132 LAW OF THE EMPLOYMENT OF LABOR 

that the purchase was carelessly made (as, for instance, without 
indicating to the manufacturer the intended use, so that he 
might make tests appropriate to such use) has been held to 
imply negligence. If an article is of an approved pattern, and 
the dealer is a reputable one, the presumption is in favor of the 
employer's non-liability. 1 The doctrine does not control every- 
where, however, cases being found in which it was held to be the 
duty of the employer to cause a thorough inspection of newly 
purchased articles before putting them into use. 2 In favor of 
this view is the fact that it accords with the doctrine of non- 
delegable duties, discussed below, and that it alone affords pro- 
tection to the employee where there has been actual negligence 
on the part of the manufacturer, with whom he has no contrac- 
tual relations. 

The necessity for inspection of instrumentalities in use ob- 
viously varies with the nature of the appliance and the cir- 
cumstances of employment. Small and simple tools may be 
used without inspection, the employer being entitled to assume 
that the workmen will make timely discovery of defects and be 
suitable judges of the fitness of such tools for use. Complex 
or dangerous machinery or instrumentalities that are liable to 
rapid wear or deterioration must, on the other hand, be the 
subjects of inspections of a nature and frequency adapted to 
the conditions indicated. 

The duty does not extend beyond a reasonably careful inspec- 
tion, though no defect will be considered latent which may be dis- 
covered by the exercise of due care. The taking apart of ma- 

1 Reynolds v. Merchants' Woolen Co., 168 Mass. 501, 47 N.E. 406. But see 
Erickson v. Am. Steel & W. Co., 193 Mass. 119, 78 N.E. 761. 

» Morton v. Detroit, etc., R. Co., 81 Mich. 423, 46 N.W. Ill ; Richmond & 
D. R. Co. v. Elliott, 149 U.S. 266, 13 Sup. Ct. 837. 



LIABILITY OF EMPLOYERS FOR INJURIES 133 

chinery, or such other inspection as would interfere with the 
profitable conduct of business, is not, in general, required. 1 
External appearances, however, may be such as to demand a 
more thorough inspection ; 2 so, also, of appliances showing 
defects in operation or those to which some accident has oc- 
curred of a nature likely to cause obscure injuries to machinery, 
which may subsequently give rise to accidents. 3 

In many states coal mines, factories, stationary steam boilers, 
and in some, locomotive boilers and railroad equipment, are 
subjects of inspection at the hands of officials appointed by the 
state. 4 Although some of these requirements have regard to the 
safety of the public as well as to that of the employees, they are 
valuable as fixing standards which must be observed, and non- 
compliance with an inspector's orders is negligence if an employee 
is injured by reason thereof. 5 According to the better view, 
assumption of risks cannot be pleaded as a defense, since the 
employee has a right to presume that his employer has per- 
formed his prescribed duty. 6 Failure to comply with an in- 
spector's orders is a penal offense in Idaho. 7 

The fact that government inspections have been made does 
not, however, excuse the employer for negligence in this regard ; 8 
nor does the fact that the employment of a certified overseer or 
mine boss is required by statute serve to clear the employer of 

1 Philadelphia & R. R. Co. *. Hughes, 119 Pa. 301, 13 Atl. 286. 

2 Hall v. Emerson-Stevens Mfg. Co., 94 Me. 445, 47 Atl. 924. 

3 Mooney v. Connecticut River Lumber Co., 154 Mass. 407, 28 N.E. 352. 

4 See Chapter 4. 

6 Andricus' Adm'r. v. Coal Co., 28 Ky. 704, 90 S.W. 233. 

6 Foley v. Pioneer Mining, etc., Co., 144 Ala. 178, 40 So. 273. 

7 Code, sec. 4761. 

• O'Connor v. Armour Packing Co., 158 Fed. 241 (C.C.A.). See N.Y., C.L., 
ch. 49, sec. 73. 



134 LAW OF THE EMPLOYMENT OF LABOR 

responsibility for his negligent conduct. 1 The reverse has 
been held, however, 2 though it cannot be regarded as other than 
an erroneous view of the law, and it may be precluded by a 
declaration embodied in the statute to the effect that the certi- 
fied employee is to be regarded as the personal representative 
of the employer. 3 

Section 65. Ownership of Appliances. — The duty of inspec- 
tion above considered assumes the ownership of both appliances 
and premises to be in the employer. Where ownership is divided 
various distinctions exist, based on the relations of the employer 
and the owner of the premises or instrumentality. The most 
important of this class of cases are perhaps those in which is 
involved the handling by railroad companies of cars belonging 
to other companies. Such cars, known in railroading as "for- 
eign" cars, although received only temporarily for purposes of 
transportation, are as completely identified with the employer's 
plant as if the transfer was made by purchase, so that the nature 
of the obligations arising therefrom differs from that existing in 
cases where the employer's lack of control over the appliance is 
usually held to exempt him from liability. 4 

In the first place, it may be said that no railway company is 
obliged to receive and turn over to be handled by its employees 
any defective or dangerous car. 5 Every company is under a 
legal duty not to expose its employees to dangers arising from 

1 Consol. Coal Co. v. Seniger, 179 111. 370, 53 N. E. 733 ; Fulton v. Wilmington 
Star Min. Co., 133 Fed. 193 (CCA.) ; Antioch Coal Co. v. Rockey, 169 Ind. 247, 
82 N.E. 76. 

2 Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237 ; Williams v. Thacker 
Coal & Coke Co., 44 W. Va. 599, 30 S.E. 107. 

3 Tenn., Acts 1907, ch. 540. 

* Baltimore & P. R. Co. v. Mackey, 157 U.S. 72, 15 Sup. Ct. 491. 
« Gottleib v. R. Co., 100 N.Y. 462, 3 N.E. 344. 



LIABILITY OF EMPLOYERS, FOR INJURIES 135 

such defects of foreign cars as may be discovered by reasonable 
inspection before such cars are received into its train. This 
inspection is such a one as the company's own cars would receive 
while in use, and not a shop inspection. The shortness of the 
time during which the foreign car is in the hands of a company 
is not an excuse for neglecting the duty. 1 

Where danger from the use of foreign cars arises, not from 
defective equipments, but from differences of construction, it 
has been generally held that the servant assumes the obvious 
risks thus arising, but if he is ignorant of the risk, a right of 
action accrues. It may be noted, however, that the statutory 
requirement as to automatic couplers is not met unless the 
various kinds brought together will actually couple by impact, 
the mere fact that they will so couple when used with others of 
the same make not being a sufficient compliance with the federal 
statute. 2 

Section 66. Working Force. — Besides the duty to use care 
in regard to instrumentalities, the employer must also be rea- 
sonably and properly careful and diligent to see that each em- 
ployee hired by him has such qualifications as will enable him 
to perform his duties without greater risk to himself and his 
co-employees than the nature of the business involves; and 
that a sufficient number is provided for a reasonably safe per- 
formance of the work. 

The disqualifications of persons of suitable age may be mental, 
moral, or physical, the most common being those that arise 
from the intemperate use of intoxicants, though habitual care- 
lessness or recklessness, such as may reasonably come to the 

1 Atchison, T. & S. F. R. Co. v. Penfold, 57 Kans. 148, 45 Pac. 574. 
* Johnson v. Southern P. R. Co., 196 U.S. 1, 25 Sup. Ct. 158. 



136 LAW OF THE EMPLOYMENT OF LABOR 

knowledge of the employer, likewise charges him with liability. 
The element of knowledge, either actual or constructive, is an 
essential one. A plaintiff grounding his claim on the negligence 
of the employer in hiring an incompetent coservant must prove, 
not only the incompetence, but also that the employer failed of 
proper care and diligence in the original hiring or in subsequent 
inquiry as to incompetency of which notice was given during 
the term of service. 1 

Section 67. Rules. — Another branch of the employer's duty 
is that of providing appropriate rules and securing the carrying 
out of a suitable system for the conduct of his work. This 
applies only to business sufficiently complex to make such ar- 
rangements reasonable, and no such assumption is made as that 
rules can be so framed as to guard against every contingency. 
Such rules and practices as are prescribed must be brought to 
the knowledge of the employee before he is considered to be 
bound by them, but it may be inferred from circumstances that 
this has been done. Express contracts with reference to the 
conditions of employment as affected by specified rules are 
conclusive as against an employee professing ignorance of such 
rules ; 2 but a mere agreement, though in writing, to study the 
rules and keep posted on them is applicable only to such rules 
as have been duly promulgated or which the employer has 
definitely undertaken to bring to the employee's knowledge. 3 

Enforcement of rules is no less a duty than the promulgation 
of rules in so far as a reasonably careful supervision will accom- 
plish it. Repeated and notorious violations will charge the 

1 Indiana, B. & W. R. Co. v. Dailey, 110 Ind. 75, 10 N.E. 631. 

« Sedgwick v. Illinois C. R. Co., 73 Iowa 158, 34 N.W. 790. 

» Carroll v. East Tennessee, V. & G. R. Co., 82 Ga. 452, 10 S.E. 163. 



LIABILITY OF EMPLOYERS FOR INJURIES 137 

employer with a knowledge of the insufficiency of the provisions 
made and the necessity of new regulations or of additional su- 
perintendence. In the absence of steps to secure the enforcement 
of rules thus violated, it has been frequently held that the master 
has sanctioned their abrogation and that they are no longer 
binding. Their violation would not then be regarded as neg- 
ligence, nor could the employer offer such rules as a defense. 1 

In a few jurisdictions the adoption and promulgation of rules 
for railroad employees are the subject of statutory requirement ; 2 
while in some, at least partial codes of mine rules have been 
enacted. 3 

Section 68. Instructions and Warnings. — Besides the gen- 
eral rules by which the conduct of business is determined, 
instructions may be necessary in case either of abnormal con- 
ditions or of the employment of inexperienced persons. The 
principle lying at the foundation of this duty is the same as in 
the case of providing appliances, viz., liability does not attach 
on account of the dangers of the situation, but for placing the 
employee in a situation of the hazards of which he is excusably 
ignorant. There is no legal necessity for the giving of instruc- 
tions or warnings, therefore, where the employee's knowledge 
as to conditions and means of safety is equal to that of the em- 
ployer, nor where, all the circumstances being considered, 
adequate knowledge can be attributed to him. A modification 
of this rule is to be found, however, in the fact that it is not a 
mere knowledge of conditions, but a comprehension of the 
dangers attendant thereon, that must be shown in order to ab- 

1 St. Louis, A. & T. R. Co. v. Triplett, 54 Ark. 289, 15 S.W. 831 ; 16 S.W. 266. 
J Ind., Acts 1907, ch. 272 ; Mich., C.L., sec. 6286. 

» Ariz., Acts 1907, ch. 72; 111., R.C. ch. 93; Md., Acts 1902, ch. 124; Pa., 
B.P. Dig. pp. 1340 et seq. ■ 



138 LAW OF THE EMPLOYMENT OF LABOR 

solve the master from responsibility. 1 Misrepresentations on 
the part of the employee as to age and experience have been held 
by some courts to relieve the master of the duty to instruct, 2 
while others deny such effect. 3 Regarding the duty as one of 
" proper care," it would seem that the employer cannot be 
absolved from the duty of disclosing dangers which are not ob- 
vious by any statements whatever of those whom he may em- 
ploy, though the circumstance of the employee's representations 
may be considered. 

Section 69. Duties Non-Delegable. — Considering the em- 
ployer's duties as matter of personal obligation, it is apparent 
that directions to a servant, or the employment of persons to 
perform these functions in the employer's stead, will not in 
itself relieve him of the responsibility ; but if there be a defective 
discharge of such duties by the person employed for their per- 
formance, the employer is still liable, and will not be allowed to 
screen himself behind his agent. In determining the question 
of the employer's liability, the relations of fellow-servants are 
involved, or rather the doctrine of vice-principals, and the de- 
cision will be found to turn largely on the point of whether the 
negligent employee was, with reference to the act occasioning 
the injury, a co-employee, or whether he was the representative 
of the employer in that particular act. 

As to duties prescribed by statute, it appears to be the rule 
that, apart from an express legislative declaration, they will be 
classed as delegable or non-delegable according to the common- 
law classification of such duties. 



« Coombs v. New Bedford Cordage Co., 102 Mass. 572, 3 Am. Rep. 506. 
» Steen v. St. Paul & D. R. Co., 37 Minn. 310, 34 N.W. 113. 
• Louisville & N. R. Co. v. Miller, 43 CCA. 436, 104 Fed. 124. 



LIABILITY OF EMPLOYERS FOR INJURIES 139 

Section 70. Negligence. — The non-performance of the 
duties devolving upon the employer, when it results in injury to 
an employee, renders him liable to a charge of negligence. This 
is defined as being "the failure to do what a reasonable and 
prudent person would have done under the circumstances of 
the situation, or the doing what such a person under the existing 
circumstances would not have done." l It is not necessary 
that the particular injury could have been foreseen, or the par- 
ticular manner of its occurrence anticipated, but only that the 
person charged might reasonably have foreseen that injurious 
consequences might be expected from his act or omission. 2 The 
negligent act will be judged by the exigencies of the occasion. 
The mere fact of injury is not proof of negligence ; in fact, it is 
said that it does not even carry a presumption of negligence. 3 
The matter is therefore one requiring direct proof, unless the 
conditions are so obviously dangerous as to preclude any other 
inference than that of negligence. 4 The burden of proof is there- 
fore generally held to be on the plaintiff, though it has been held 
that such an accident as a collision or the derailment of a train 
raised such a presumption of negligence that the burden was 
cast on the railroad company of proving that it was not negli- 
gent. 5 This is in brief the effect of a statute of Mississippi 
applicable to railroads. 6 

Section 71. The Defenses of Employers. — For a breach of 
duty to an employee resulting in injury an action will lie for the 
recovery of damages. Employers are not insurers, however, 

1 Baltimore & P. R. Co. v. Jones, 95 U.S. 439. 

* Mobile, J. & K. C. R. Co. v. Hicks, 91 Miss. 273, 46 So. 360. 
« Patton v. Texas P. R. Co., 179 U.S. 658, 21 Sup. Ct. 275. 

* Stearns v. Ontario Spinning Co., 184 Pa. 523, 39 Atl. 292. 

6 Wright v. Southern R. Co., 127 N.C. 225, 37 S.E. 221. See also Shuler v. 
Omaha, K. C. & E. R. Co., 87 Mo. App. 618. • Code, sec. 1985. 



140 LAW OF THE EMPLOYMENT OF LABOR 

and are liable for the consequences, not of danger, but of neg- 
ligence. Some duties are by statute made obligatory upon the 
employer to such an extent as practically to fix his liability in 
case of injuries entailed by their omission. Apart from such 
enactments, however, the employer may, in case of an action for 
damages, offer a defense based on the principle expressed in the 
maxim, "Volenti non fit injuria"; or he may undertake to 
prove the plaintiff's assumption of the risk, or his contributory 
negligence ; or he may rely on the doctrine of common employ- 
ment to relieve him from liability. 1 

The principle of the maxim, "Volenti non fit injuria," is of 
general application, the meaning of the phrase as freely ren- 
dered being, "That to which a person assents is not esteemed in 
law an injury." A clearer statement is that by an English 
judge, "One who has invited or assented to an act being done 
toward him cannot, when he suffers from it, complain of it as a 
wrong." In a Massachusetts case the doctrine was thus ex- 
pressed : " One who knows of a danger from the negligence of 
another, and understands and appreciates the risk therefrom 
and voluntarily exposes himself to it, is precluded from recover- 
ing for an injury which results from the exposure." In brief, 
the injured person has assumed the risk ; and, apart from the 
contractual relation of employer and employee, there is a con- 
siderable class of cases in which this defense to an action for 
damages may be interposed. The invitation or assent is not 
necessarily or even commonly formal, but is inferable from 
conduct and conditions, often subsequent to the entrance upon 
the situation that gives rise to the circumstances to which the 
doctrine is applied. 

1 Mention has already been made of the statutory abrogation of these de- 
fenses under specified conditions. See sec. 46. 



LIABILITY OF EMPLOYERS FOR INJURIES 141 

Section 72. Assumption of Risks. — When a contract of 
employment is entered upon, the law imports into the agreement 
an assumption by the employee of the ordinary risks incident to 
the employment, and of such other risks as may be known and 
appreciated by him. This is said to be one of the terms of the 
contract, express or implied from the circumstances of the em- 
ployment. 1 One seeking employment impliedly represents 
that he is capable therefor, and that he comprehends the ordi- 
nary risks. 2 Another view of the defence is that it does not arise 
from the contract of employment, but from the status of em- 
ployer and employee as fixed by common law, and is over and 
above the contract, being imposed by law upon the parties 
thereto, regardless of their desires. 3 Courts differ as to whether 
or not the employee assumes the risks of his employer's negli- 
gence, some holding that he does if such negligence is known ; 4 
though this may be qualified by limiting the assumption to 
cases other than those in which the negligence consists in a 
failure to comply with statutory requirements for the em- 
ployee's safety. 5 Even this exception has been specifically 
disallowed, however, 6 while on the other hand it has been broadly 
held that the employee never assumes the risk of the employer's 
negligence. 7 " Prima facie, a servant does not assume any 

1 Narramore v. Cleveland, etc., R. Co., 96 Fed. 298, 37 CCA. 499. 

2 Wagner v. Chemical Co., 147 Pa. 475, 23 Atl. 772. 

3 Denver & R. G. R. Co. v. Norgate, 141 Fed. 247 ; Martin v. Chicago, etc., 
R. Co., 118 Iowa 148, 91 N.W. 1034. 

* Consol. Min. Co. v. Bateman, 176 Fed. 57 (CCA.) ; Labatt, M. & S., sec. 
271, cases cited. 

B Ft. Wayne, etc., Traction Co. v. Roudebush, 173 Ind. 57, 88 N.E. 676. 

6 Knisley v. Pratt, 148 N.Y. 377, 42 N.E. 986. 

7 Gagnon v. Machine Co., 174 Fed. 477 ; George v. Railway Co., 225 Mo. 364, 
125 S.W. 196 ; see also Hough v. Texas & P. R. Co., 100 U.S. 213, 25 L. Ed. 612 j 
George v. Clark, 85 Fed. 608, 29 CCA. 374. 



142 LAW OF THE EMPLOYMENT OF LABOR 

risks which may be obviated by the exercise of reasonable care 
on the master's part. In other words, the abnormal, unusual, 
or extraordinary risks which the servant does not assume as 
being incident to the work undertaken by him are those which 
would not have existed if the master had fulfilled his contractual 
duties." x It is doubtless too much to say, in view of the rather 
numerous exceptions to the rule, that the employee never as- 
sumes such risks, though obviously the whole doctrine of the 
liability of the employer for injuries to his employees turns on 
the point involved. 

The question of the employee's knowledge and understanding 
is in general controlling in the matter of ordinary risks, and, 
where the exception is allowed, in the matter of extraordinary 
risks as well. The knowledge may be either actual or imputed. 
A workman of mature years and ordinary intelligence, offering 
himself for employment, is presumed to know and appreciate 
the conditions, and to assume the risks ordinarily incident to 
the service and to have notice of all risks which, to one of his 
experience and capacity, are, or ought to be, open and obvious. 
He does not assume risks arising from conditions of which he was 
actually and excusably ignorant ; nor is he required to use more 
than ordinary care to discover existing conditions. 2 

The courts have sometimes defined ordinary risks as those 
that pertain to the employment after the employer has dis- 
charged his duty as to safe place, appliances, etc., and which 
ordinary care on his part cannot guard against. Under another 
conception the word " ordinary" is held to be construed in its 
usual sense. This may be taken to mean either that the risk is 

1 Labatt, M. & S. f sees. 2, 270. 

* Allen v. Boston & M. R. Co., 69 N.H. 271, 39 Atl. 978 ; Comben v. Belleville 
Stone Co., 59 N.J.L. 226, 36 Atl. 473. 



LIABILITY OF EMPLOYERS FOR INJURIES 143 

so obviously a normal incident of the employment that an in- 
telligent observer would recognize it as such, and the dangers 
arising therefrom as constantly possible ; or it may imply that 
the employment unavoidably and of necessity involves the 
risks, which is much the same as holding that the master's care 
cannot obviate them. 

These risks are such as arise from the negligence of fellow 
servants, unless the employer was negligent in employing in- 
competent workmen; or from the nature of the instrumen- 
talities used; or from the conditions, whether permanent or 
temporary, of the conduct and nature of the business. 

Risks which may be obviated by the exercise of reasonable 
care on the part of the employer are classed as extraordinary, 
and these the employee is held not to have assumed without a 
knowledge and comprehension of the dangers arising from the 
employer's negligence. If the dangers are patent or are brought 
to the knowledge of an employee, his entering upon or remaining 
in service is construed as a waiver of any claim against the em- 
ployer for resulting damages. 1 In the first case he will be held 
to have made his contract in the light of existing conditions; 
and as to risks arising during employment, it has been said that 
if a servant continues to use an appliance which he knows to be 
dangerous, he does so at his own risk and not at that of his em- 
ployer. 2 It must appear, however, that the risk was actually 
appreciated. While a failure to notify the employer of dis- 
covered or known risks is construed as indicating the employee's 
willingness to continue to work while they exist, the risk is not 
thrown upon the employer by a mere notification not replied to 

i Tuttle v. Detroit, G. H. & M. Ry., 122 U.S. 189, 7 Sup. Ct. 1166. 
a Washington & G. R. Co. v. McDade, 135 U.S. 554, 10 Sup. Ct. 1044. 



144 LAW OF THE EMPLOYMENT OF LABOR 

by his promise to repair. 1 If the alternative of continuing to 
work with the defective appliance or of leaving the employment 
is offered, and the employee continues to work, he will be held 
to have assumed the risk. 2 A promise to repair can be relied 
upon only for a reasonable time, after which the risk will be 
upon the employee. 

Section 73. Contracts and Rules avoiding Liability. — To what 
extent the defense of assumption of risks may be carried is a 
question for the courts, and efforts on the part of the employer to 
make his workmen insurers of their own safety by the adoption 
of rules or the requirement of contracts releasing the employer 
from liability will in general be discountenanced. Thus it has 
been held that a rule which required an employee not to attempt 
to use appliances unless he knew that they were in a proper 
condition imposed upon the servant one of the duties of the 
master, i.e., that of seeing that the implements furnished are in 
a reasonably safe state of repair; and such rule was declared 
void. 3 Nor can an employer by his rules shift to the em- 
ployee the responsibility placed upon himself by a statute. 4 A 
stipulation exempting a railroad company from liability for 
injuries caused to its employees by its negligence is void as 
against public policy. 5 A contract executed subsequent to the 

1 East Tennessee, V. &. G. R. Co. v. Duffield, 12 Lea 63, 47 Am. Rep. 319. 

1 Leary v. Boston & A. R. Co., 139 Mass. 580, 2 N.E. 115. But see Jewell v. 
Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703. 

3 Missouri, K. & T. R. Co. v. Wood, 35 S.W. 879 (Tex. Civ. App.). 

* Consol. Coal Co. v. Lundak, 196 111. 594, 63 N.E. 1079. 

5 Lake Shore & M. S. R. Co. v. Spangler, 44 Ohio St. 471, 8 N.E. 467 ; Little 
Rock, etc., R. Co. v. Eubanks, 48 Ark. 460, 3 S.W. 808 ; Richmond & D. R. Co. v. 
Jones, 92 Ala. 218, 9 So. 276 ; Stone's Adm'r. r. Union P. R. Co., 32 Utah 185, 89 
Pac. 715 ; Johnson v. Charleston & S. R. Co., 55 S.C. 152, 32 S.E. 2 ; Roesner v. 
Herman, 8 Fed. 782. 



LIABILITY OF EMPLOYERS FOR INJURIES 145 

employee's entrance on service, relieving the employer of liabil- 
ity, has been held void for want of consideration. 1 In another 
case, in a lower court of the same state as the above, a contract 
of like import, though based on sufficient consideration, was 
declared void as against public policy. 2 As was said in the 
Roesner case, if there was no negligence, there was no need of a 
contract to exempt the defendant from liability ; if he was neg- 
ligent, the contract would be of no avail. 

It has been held that an employer could not relieve himself 
by contract of a liability imposed by statute, although the 
statute itself made no reference to such contracts. 3 An implied 
waiver of the benefits of a statute which requires frogs on a 
railroad to be blocked or dangerous machinery to be guarded, 
based on continuance in service with knowledge that the law 
has not been complied with, has been held not to be valid as a 
defense in an action for injuries resulting from the employer's 
failure to comply with the statute. 4 There is, however, a strong 
list of cases on the other side. 5 In Georgia 6 and Pennsylvania, 7 
express contracts limiting or denying the employee's right of 
action have been upheld. In the former state a later statute 
declares such contracts void in so far as they affect any liability 

1 Purdy v. Rome, etc., R. Co., 125 N.Y. 209, 26 N.E. 255. 

' Runt v. Herring, 49 N.Y. St. 126, 21 N.Y. Supp. 244. 

8 Kansas P. R. Co. v. Peavey, 29 Kans. 169, 44 Am. Rep. 630 ; Tarbell v. 
Rutland R. Co., 73 Vt. 347 5 51 Atl. 6. 

<Narramore >. Cleveland, etc., R. Co., 96 Fed. 298, 37, CCA. 499; 
Davis Coal Co. v. Polland, 158 Ind. 607, 62 N.E. 492 ; Western Furniture & 
Mfg. Co. v. Bloom, 76 Kans. 127, 90 Pac. 821. 

B Denver & R. G. R. Co. v. Gannon, 40 Colo. 195, 90 Pac. 853 ; St. Louis 
Cordage Co. v. Miller, 126 Fed. 495 ; O'Maley v. South Boston Gas Light Co.; 
158 Mass. 135, 32 N.E. 1119. 

« Western & A. R. Co. v. Bishop, 50 Ga. 465. 

* Mitchell v. Pa. R. Co., 1 Am. Law Reg. 717. 
L "" 



146 LAW OF THE EMPLOYMENT OF LABOR 

fixed by statute. Similar or more general statutes exist in a 
majority of the states, and such a provision is incorporated in 
the federal liability law of 1908. These laws have received 
countenance in a number of cases. 1 In the Indiana and Iowa 
cases cited, it was necessary to decide on the constitutionality 
of this particular provision of the state statutes. In the Mum- 
ford case the clause prohibiting contracts limiting liability was 
held applicable to a provision in a contract of employment limit- 
ing the time within which actions to recover damages for injuries 
might be brought, the provision being condemned as contrary 
to law. In the Quinn case it was held that the statute was 
not contravened by an agreement in the contract of employ- 
ment by which the employee undertook to make a careful ex- 
amination of the place of work so that he might understand its 
dangers. 

Section 74. Relief Benefits. — Where the feature of relief 
benefits exists, a new factor is introduced, and, apart from stat- 
utes declaring a contrary doctrine, the rulings of the courts are 
quite uniform in favor of the contract. It is generally provided 
that the acceptance of benefits by the injured employee shall 
operate as a waiver of his right of action at law against his em- 
ployer, and that if action is brought and is compromised or 
carried to judgment, no claim shall lie against the fund. Such 
funds are usually maintained jointly by employers and em- 
ployees, though the expense is not necessarily equally shared. 

i Quinn v. New York, etc., R. Co., 175 Mass. 150, 55 N.E. 891 ; Pierce v. Van 
Dusen, 78 Fed. 693 ; Minneapolis & St. L. R. Co. v. Herrick, 127 U.S. 210, 8 Sup. 
Ct. 1176; Pittsburg, etc., R. Co. v. Montgomery, 152 Ind. 1, 49 N.E. 582; 
Powell v. Sherwood, 162 Mo. 605, 63 S.W. 485 ; Mumford v. Chicago, etc., R. Co., 
128 Iowa 685, 104 N.W. 1135 ; Kansas P. R. Co. ». Peavey, supra. Per contra, 
see Shaver v. Pennsylvania Co., 71 Fed. 931. 



LIABILITY OF EMPLOYERS FOR INJURIES 147 

An agreement to accept benefits, the acceptance to operate as 
a waiver of the right of action, is not regarded as contrary to 
public policy, inasmuch as it is not the making of the agreement 
prior to the injury, which would not in itself be effective, but 
the acceptance of benefits after the receipt of the injury, that 
bars the action. 1 The contract merely requires the employee 
to make his election whether to apply to the relief department 
or to sue. 2 But if there is lack of mutuality, or the defendant 
company fails to show that it assumes a fair proportion of the 
burden of paying the benefits, even the acceptance of such bene- 
fits will not bar a suit for damages. 3 Nor will a partial payment 
of the agreed benefits avail as a bar to the action. 4 The state 
has the right to promote the welfare and safety of those within 
its jurisdiction by requiring all corporations and persons to be 
responsible for their negligence to the full measure of the loss 
caused thereby, a contract to the contrary notwithstanding. 5 
A contract that purports to bind the members of the relief de- 
partment by the decision of an " advisory committee/' making 
such decision final and decisive, is void, as it undertakes to defeat 
the constitutional right of appeal to the courts for the redress of 
wrong. 6 

The agreement that claims on the benefit fund are forfeited 
by suit in which judgment is procured or a compromise is made 

1 Johnson v. Philadelphia, etc., R. Co., 193 Pa. St. 134, 29 Atl. 854 ; Frank v. 
Newport Min. Co., 148 Mich. 637, 112 N.W. 504. 

2 Owens v. Baltimore & O. R. Co., 35 Fed. 715 ; Leas v. Pennsylvania Co., 10 
Ind. App. 47, 37 N.E. 423. 

3 Chicago, B. &. Q. R. Co. v. Miller, 76 Fed. 439 (CCA.) ; Atlantic C L. R. 
Co. v. Beazley, 54 Fla. 311, 45 So. 761. 

4 Pennsylvania Co. v. Chapman, 220 111. 428, 77 N.E. 248. 

6 Chicago, M. & St. P. R. Co. v. Solan, 169 U.S. 133, 18 Sup. Ct. 289. 
« Baltimore, etc., R. Co. v. Stankard, 56 Ohio St. 224, 46 N.E. 577. 



148 LAW OF THE EMPLOYMENT OF LABOR 

was held valid in an Iowa case ; l but the supreme court of New 
Jersey ruled that "the judgment intended is one by which the 
claimant recovers some compensation for the loss alleged/ ' and 
granted a new trial in a suit to recover the benefit where a suit 
for damages at law had recovered nothing. 2 Double recovery 
will not generally be allowed, the provision of such contracts that 
the prosecution of a suit bars the claim to the fund fixing the 
status of the' claimant thereunder. 3 This question has been 
made the subject of legislation, however, and a statute providing 
that the acceptance of insurance, relief, or benefits from an as- 
sociation of the nature under consideration shall not be a bar to 
an action to damages 4 has been held constitutional, 5 and the 
fact cannot be ignored that in accepting such benefits the em- 
ployee feels that he is only taking that to which he is entitled 
by reason of his contributions to the fund without being re- 
quired to forfeit his right to recover damages at law ; and it is 
within the power of the legislature to declare that the payment 
of such benefits shall not operate to discharge an employer from 
liability for his negligence and shift the burden which the state 
has declared he should be compelled to bear. 6 A statute of 
South Carolina goes a step farther, and requires railroad com- 
panies to pay the agreed benefit on the death of an employee 
from accident, with the provision that the acceptance of such 
benefit shall not be a bar to action. 7 This statute has been de- 



l 1 Donald v. Chicago, etc., R. Co. 93 Iowa 284, 61 N.W. 971. 

2 O'Reilly v. Pennsylvania Co., 69 N.J.L. 119, 54 Atl. 233. 

3 Baltimore & O. R. Co. v. Ray, 36 Ind. App. 430, 73 N.E. 942. 
* Iowa, Code, sec. 2071. 

6 McGuire v. Chicago, etc., R. Co., 131 Iowa 340, 108 N.W. 902 ; Chicago, etc., 
R. Co. v. McGuire, 219 U.S. 549, 31 Sup. Ct. 259. 

8 Chicago, etc., R. Co. v. McGuire, supra. 7 Acts 1903, No. 48. 



LIABILITY OF EMPLOYERS FOR INJURIES 149 

clared valid, 1 but it was held that an employee recovering 
damages as full compensation for injuries could not afterwards 
disregard his relinquishment of his interest in the benefit fund 
and seek to secure such interest in an action at law. In such a 
case the statute was held not to apply, and the agreement made 
by the employee was held to control. 

The federal liability laws of 1906 2 and 1908 3 contain pro- 
visions forbidding contracts of waiver, but contributions made 
by employers to benefit or relief societies may be set off against 
any judgment for damages secured by an injured employee. 
This provision of the act of 1906 was held to be valid and to 
give an injured employee a right to sue for damages in spite of 
the fact that he had received benefits from a society of which he 
was a member, one of the conditions being that the receipt of 
such benefits should bar his right to sue. 4 

While express messengers may at common law waive their 
right of action for damages in case of injury against both their 
employer and the transporting railway company, such a contract 
has been held to be void as against the railroad company under 
the Iowa statute above mentioned. 5 

Section 75. Contributory Negligence. — When a risk involves 
such a degree of danger that a prudent man would not assume 
it, the defense to an action by an injured employee is not that 
the plaintiff by his contract assumed the risk, but that he was, 
by his conduct, guilty of contributory negligence. In practice, 

1 Sturgiss v. Atlantic C.L.R. Co., 80 S.C. 167, 60 S.E. 939. 

* Acts 1905-1906, ch. 3073, 34 Stat. 232. 
J Acts 1907-1908, ch. 149, 35 Stat. 65. 

* Goldenstein v. Baltimore & O. R. Co., 37 Wash. L. Rep. 2 ; Potter v. Same 
37 Wash. L. Rep. 466. 

6 O'Brien v. Chicago N. W. R. Co., 116 Fed. 502. 



150 LAW OF THE EMPLOYMENT OF LABOR 

the line is not clearly drawn between the two defenses, nor is it 
always easy to do so, inasmuch as the facts in a given case may 
support either defense. The principles are distinct, however, 
as assumption of risk is an implied or actual agreement, entered 
into before the happening of the accident, to waive compensa- 
tion from the employer for injuries resulting therefrom ; or, it 
is an incident of the contract, read into it by the fixed rules of 
law. If, however, there has been contributory negligence, 
there is no reference to either contract or status to determine 
rights, but only to the conduct of the employee. If under all 
the attendant circumstances he fell short of reasonable and 
ordinary care, the defense of contributory negligence will lie 
against him. 

The rule is announced by Cooley as follows : "If the plaintiff 
or party injured, by the exercise of ordinary care under the 
circumstances, might have avoided the consequences of the 
defendant's negligence, but did not, the case is one of mutual 
fault, and the law will neither cast all the consequences upon 
the defendant, nor will it attempt any apportionment thereof." 

The negligence of an employee will not be a bar to his action 
unless it is the actual and proximate cause of his injury. Con- 
duct merely furnishing the occasion or condition of the injury 
does not amount to negligence. 1 Even if the employee was 
guilty of negligence which may have contributed to the accident, 
yet if the employer by the exercise of ordinary care and diligence 
could have avoided its occurrence, the antecedent negligence 
of the employee has been held not to destroy his right of action. 
Still less will the negligence of the servant operate as a defense 
where it is followed by willful or wanton negligence on the part 

i Smithwick v. Hall & U. Co., 59 Conn. 261, 21 Atl. 924. 



LIABILITY OF EMPLOYERS FOR INJURIES 151 

of the master. Where injuries result in death, the right of the 
personal representative to sue, which does not exist under the 
common law, but is now given by statute in most states, is 
subject to the same limitations as would have been the right of 
the injured person if he had survived. 

Section 76. What Negligence bars Recovery. — What does 
and what does not constitute such negligence as to be a bar to 
an employee's claim for damages have not been consistently 
ruled upon by the courts. The test varies according to circum- 
stances, the rule being that the servant must conduct himself as 
a prudent person would in a like position. 

A servant engaging in work for which he is not qualified by 
previous experience, and incurring injury, is held to have been 
negligent. 

So also if the precautions appropriate to dangerous situations 
are omitted, or if an unnecessarily dangerous method of doing 
work is chosen where the employee has the power of choice, or 
if he assumes or remains in a position of unnecessary danger, 
he will be held to be guilty of contributing to his own injury. 

The use of defective or otherwise unsuitable instrumentali- 
ties may be negligent, though if a showing of due care in the 
circumstances is made, and the danger was not great and ob- 
vious, an action for damages may be maintained. 

Violation of orders or of specific valid rules of which the em- 
ployee has notice, and the neglect of warnings with reference to 
any of the acts named above will usually be held to imply neg- 
ligence as a matter of law. 1 

The general rule that the employee loses his right to a re- 

1 Coops v. Lake Shore & M. S. R. Co., 66 Mich. 488, 33 N.W. 541 ; Louisville 
& N. R. Co. v. Woods, 105 Ala. 561, 17 So. 41. 



152 LAW OF THE EMPLOYMENT OF LABOR 

covery by remaining at work after the discovery of unsafe 
conditions predicates a duty to leave the service in due time to 
escape the threatened dangers. How far he may omit this 
duty and still have recourse to his employer for compensation 
for injuries cannot be absolutely determined in any general 
sense, but it is allowable for the employee to remain a reason- 
able time, and especially if his immediate departure would 
jeopardize the safety of the public or the interests of his em- 
ployers. 1 

Section 77. Comparative Negligence. — A doctrine of com- 
parative negligence, according to which the courts attempt to 
apportion the fault, and, if the preponderance of negligence 
seems to be chargeable to the employer, to award damages in a 
corresponding amount, has received some countenance at com- 
mon law, 2 although in later cases in the same courts the doctrine 
has been repudiated, and a negligent employee is now barred 
from recovery unless it appears that his employer was guilty 
of willful negligence in connection with the occasion of the in- 
jury. 3 The doctrine was seemingly approximated in a recent 
case in which the court awarded damages to a plaintiff whose 
" negligence was slight in comparison to that of the defendant," 
that of the latter being held to be the proximate cause of the 
accident. 4 This case did not properly present the doctrine of 
comparative negligence, however, but rather that of "the last 

1 Irvine v. Flint & P. M. R. Co., 89 Mich. 416, 50 N. W. 1008 ; Pennsylvania 
Co. v. Roney, 89 Ind. 453, 46 Am. Rep. 473 ; Houston & T. C. R. Co. v. Burnet, 
49 Texas Civ. App. 244, 108 S.W. 404 ; Maryland Steel Co. v. Marney, 88 Md. 
482, 42 Atl. 60. 

* Chicago & A. R. Co. v. Johnson, 116 111. 206, 4 N.E. 381 ; Wichita & W. R. Co. 
v. Davis, 37 Kans. 743, 16 Pac. 78. 

3 Chicago & A. R. Co. v. Myers, 95 111. App. 578. 

* Dobyns v. Yazoo & M. V. R. Co., 119 La. 72, 43 So. 934. 



LIABILITY OF EMPLOYERS FOR INJURIES 153 

clear chance/' according to which the party who last has a clear 
opportunity of avoiding an accident is considered responsible 
for it, notwithstanding the negligence of the other party. 

Apart from statutory enactment, therefore, the doctrine of 
comparative negligence cannot be said to have a foothold in 
American jurisprudence at the present time. The Federal 
employers' liability law of 1908 1 and recent laws in several 
states 2 incorporate it in their provisions, the former by declaring 
contributory negligence not to be a bar to recovery, but that 
damages shall be diminished in proportion to the amount of the 
employee's negligence, the latter by the use of expressions that 
direct a measuring or comparison of the degree of negligence 
with which the two parties are chargeable, and a proportionate 
award of damages. This will doubtless give rise to some diffi- 
culties in the matter of administration, but it is clearly a more 
humane rule than that which relieves the employer from the 
consequences of anything short of willful negligence in cases 
where the employee's negligence in any degree contributed to 
his injury, and such legislation has been declared constitutional. 3 

Section 78. The Fellow-servant Rule. — The remaining 
defense to an employee's action for damages is what is known as 
the " fellow-servant" rule, or the doctrine of common employ- 
ment. According to this, where the employer has discharged 
his duties as to a safe place, safe and suitable appliances, com- 
petent fellow-servants, etc., he is not liable to an employee for 
the acts or negligence of any mere fellow-servant or co-employee, 

i 35 Stat. ch. 149. 

2Nebr., Acts 1907, ch. 48; Nev., Acts 1907, ch. 214; N. Dak., Acts 1907, 
ch. 203 ; S. Dak., Acts 1907, ch. 219 ; Wis., Acts 1907, ch. 254. 

3 Missouri P. R. Co. v. Castle, 172 Fed. 841 (CCA.) ; Kiley v. Chicago, etc., 
R. Co., 138 Wis. 215, 119 N.W. 309. 



154 LAW OF THE EMPLOYMENT OF LABOR 

provided such co-employee does not represent the employer. 
Or, as it has been otherwise stated, "A master is not bound to 
indemnify one servant for injuries caused by the negligence of 
another servant in the same common employment as himself, 
unless the negligent servant was the master's representative." 
If, however, the negligence of a coservant concurs with the 
negligence of an employer in causing the injury, the injured 
employee not contributing thereto, the employer will be liable 
in damages. 

The well-known diversity, not to say confusion and contra- 
dictoriness of the rulings of the courts as to the application of 
this rule arises from the lack of precise and generally accepted 
definitions of the idea of common employment and of represen- 
tation of the master. The relations of this doctrine to the other 
elements which determine the employer's liability are such that 
practically all that has been said with reference to the duties of 
the employer and the assumption of risks by the employee must 
be read in the light of the rulings of the jurisdictional courts on 
the subject, although the principles involved are held to be those 
of general law. In an opinion on a fellow-servant case which 
was before the Supreme Court of the United States a few years 
ago it was said that "there is perhaps no one matter upon which 
there are more conflicting and irreconcilable decisions in the 
various courts of the land than the one as to what is the test of 
common service, such as to relieve the master from liability for 
the injury of one servant through the negligence of another." 1 
Not only do the courts of the various states differ, but in the 
individual states are found fluctuations of opinion from time to 

» Baltimore & O. R. v. Baugh, 149 U.S. 368, 13 Sup. Ct. 914 ; Northern 
P. R. Co. v. Dixon, 194 U.S. 338, 24 Sup. Ct. 683. 



LIABILITY OF EMPLOYERS FOR INJURIES 155 

time, and the acceptance of new standards, with departures 
from former positions, so that it is important to know the date 
of an adjudication in order to determine the present construc- 
tion in the state. In the Supreme Court itself we find a deci- 
sion of 1884 strongly modified in 1893 and practically reversed 
in 1899. 1 

The attempt has been made in a number of states to fix by 
statute the relations of employees to one another, and to deter- 
mine the liability of the employer for their acts or negligence ; 
and this would appear to be the only practical method of at- 
tempting a solution of the problem as it exists to-day. It must 
be confessed, however, that even where statutes of different 
states are closely similar if not identical in phraseology, the 
effect of local interpretations is apparent in the varying con- 
structions adopted. 

The common law rule was enounced in England and America 
at about the same time, apparently independently, and to 
practically the same effect. Subsequent developments have 
been more favorable to the employee in this country than in 
England, however, some states having apparently lost sight of 
the foundations of the rule. 

The reasons offered by the courts for the rule have been vari- 
ous, one being found in the view that the master's responsibility 
is at an end when he has used ordinary care to employ com- 
petent servants. It is held that the employee assumes the risk 
of the possible negligence of a co-employee as one of the inci- 
dents of the employment. 2 In another opinion of our Supreme 

1 Cf. Chicago, M. & St. P. It. Co. v. Ross, 112 U.S. 377, 5 Sup. Ct. 184 ; 
Baltimore & O. R. Co. v. Baugh, supra; and New England R. Co. v. Conroy, 175 
U.S. 323, 20 Sup. Ct. 85. 

* Hough v. Texas & P. R. Co., 100 U.S. 213, 25 L. Ed. 612. 



156 LAW OF THE EMPLOYMENT OF LABOR 

Court it was said that the obvious reason for exempting the 
employer from liability is that the employee has or is supposed 
to have such risks in contemplation when he engages in the ser- 
vice, and his compensation is arranged accordingly, so that he 
cannot in reason complain if he suffers from a risk which he has 
voluntarily assumed, and for the assumption of which he is 
paid. 1 Another reason is found in alleged grounds of public 
policy, as tending to make the employees more watchful over 
their own conduct and that of their fellows, thus benefiting em- 
ployers, employees, and the public alike by the greater care 
with which they perform their duties. 2 In close connection 
herewith is the claim that any marked enlargement of liability 
to capital would lead to the withdrawal of capital from indus- 
trial enterprise, thus reducing the opportunities of employment 
and inflicting damage upon the whole community. 3 

Each of these reasons has been the subject of adverse criticism, 
and no one of them seems to give a satisfactory ground for ex- 
cepting employees from the benefits of the doctrine of respon- 
deat superior, or for compelling the employee to bear the burden 
of "pure accidents" which occur in the prosecution of under- 
takings, the advantages of which are to be reaped by the em- 
ployer. The last two reasons mentioned above have perhaps 
been most frequently relied on as supporting the customary 
rule, though no such results as are therein indicated have fol- 
lowed the adoption of statutes greatly enlarging the rights of 
employees to recover for injuries following upon industrial 
accidents. 

1 Chicago, M. & St. P. R. Co. v. Ross, supra. 
* Chicago, M. & St. P. R. Co. v. Ross, supra. 
» New Pittsburgh Coal & C. Co. v. Peterson, 136 Ind. 398, 35 N.E. 7. 



LIABILITY OF EMPLOYERS FOR INJURIES 157 

The chief points requiring determination in any action in- 
volving the principles under consideration are those of common 
employment and of representative capacity. If it appears that 
the injuries complained of are the result of the negligence of a 
co-employee, the only hope of the plaintiff lies in showing that 
the negligent person was a vice-principal, representing the 
master at the time, and so devolving upon him a liability for 
the acts or omissions charged. 

Section 79. Common Employment. — The first question, 
then, to be considered is what constitutes common employment. 
It was said in a leading case that, " prima facie, all who enter 
into the employ of a single master are engaged in a common 
service, and are fellow-servants," l but this broad statement 
will not answer as a conclusive test. Not only employment by 
a common master, but also engagement in the performance 
of duties that may reasonably be said to tend to the accomplish- 
ment of the same end is necessary to meet general acceptance 
by the courts ; nor is it a sufficient answer to say that all serve 
the profit or convenience of a common employer. Where an- 
other servant than the plaintiff, employed for a purpose entirely 
different from his duties, has negligently caused the injury com- 
plained of, it may well be said that they are not fellow-servants. 
But even with this qualification the statement is not definite 
enough to be of much use in determining particular cases, and 
the expressions used by judges in passing on the question of 
common employment throw little light on the subject. "En- 
gaged in the same general business," " the same general under- 
taking/' or "in promoting one common object" are frequent 
modes of expression, though in other cases the somewhat more 

1 Baltimore & O. R. v. Baugh, 149 U.S. 368, 13 Sup. Ct. 914. 



158 LAW OF THE EMPLOYMENT OF LABOR 

restricted phrases, " services having an immediate common 
object," or " working in the same place to subserve the same 
interests/ ' are used. The question involves both law and facts, 
but where the latter are undisputed, the decision becomes simply 
a matter of law, and the trial jury will not pass upon it. 

Section 80. Contemplated Risks. — A theory that has been 
adopted in many cases is that the service is common if the neg- 
ligence of the delinquent servant was, in a fair and reasonable 
sense, one of the risks contemplated by the injured employee in 
undertaking or continuing in his employment. 1 This is a refer- 
ence of the case to the doctrine of assumed risks previously 
discussed, and involves the principles of knowledge, actual or 
presumptive. By this theory the relation of the duties of the 
injured and the negligent employees becomes the criterion, to- 
gether with the question of the probability of the negligence of 
the one affecting the safety of the other. An injured employee's 
action will not be barred as matter of law by the single fact of 
service of a common master where the probabilities of injurious 
consequences from the delinquent servant's negligence were too 
remote to be reasonably foreseen ; 2 since the fellow-service rule 
11 should be confined to those servants whose duties bring them 
into such juxtaposition that one would be enabled to observe the 
negligence of his fellows." 3 This has also been termed the 
association theory, and the supreme court of Kentucky in a 
recent case declared it to be the doctrine of that state, as against 
the departmental theory. 4 Yet, inasmuch as the question is 
not one simply of locality, but of likelihood of connected con- 

1 Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377, 5 Sup. Ct. 184. 
» Northern P. R. Co. v. Hambly, 154 U.S. 349, 14 Sup. Ct. 184. 
» St. Louis, A. & T. R. Co. v. Welch, 72 Tex. 298, 10 S.W. 529. 
« Louisville R. Co. v. Hibbitt, 139 Ky. 43, 139 S.W. 319. 



LIABILITY OF EMPLOYERS FOR INJURIES 159 

sequences, mere remoteness is not sufficient to negative the idea 
of coservice where the other elements are present, though at 
what point the line shall be drawn is often difficult to determine. 
It was said in a recent case that the assumption of risks is as 
broad as the employee's reasonable anticipation of danger. 1 

Section 81. Departmental Doctrine. — A second theory, 
based on a different test from that of contemplated risk, is natu- 
rally suggested by the considerations indicated above. In the 
application of this theory the classification turns on the relation 
of employees in different departments of the employer's estab- 
lishment or business, more or less segregated. In the courts 
in which it is adopted the general test is one of the dentity or 
diversity of the departments in which the plaintiff and the 
delinquent employee were at work. Since, however, no satis- 
factory definition of the term " department" has yet been fur- 
nished, the test may be more accurately said to be one of 
consociation of duties, i.e., such a relation of the duties of the 
injured employee and those of the delinquent co-employee as that 
the former had a reasonable opportunity for protecting himself 
from injury by his own efforts. All courts w«v?ld unite in ruling 
out the defense of co-employment in certain classes of cases, and 
there is a hopeless contrariety of views as to where this defense 
shall be allowed and where denied. Even in those states where 
the defense is most frequently based on what has been called 
the departmental doctrine, this test is not the only and final 
one, as it is found that while departments may be distinct, those 
employed therein may be thrown into such contact that fellow- 
service cannot be denied, and vice versa. While, therefore, the 
two theories presented lead to real and wide differences of view, 

1 Lukic v, Southern P t R. Co., 160 Fed. 135. 



160 LAW OF THE EMPLOYMENT OF LABOR 

there is a class of cases where they approach, and the conclu- 
sions reached therein may be referred indifferently to the one 
reason or the other. 

Section 82. Representation of the Employer. — No court 
goes so far as to assert without qualification that all employees 
of a common master, or even in the same department, are co- 
employees in such sense as to relieve the master of responsibility 
for the negligent acts of those who are his representatives, either 
permanently, or as to the matter in hand. But here again there 
are as irreconcilable differences as any that have been noted, 
and it will be possible only to present the different views without 
attempting to summarize them or to bring them into harmony. 

There are in general two grounds on which adjudications are 
based : One, the mere superiority in rank of the negligent em- 
ployee and the other, the nature of the injurious act, i.e., 
whether or not it was one which was connected with the dis- 
charge of the so-called nondelegable duties of the employer. 
Like other distinctions made in the applications of the fellow- 
servant rule, there are cases in which the decision might be 
reached by the u:: of either test, but in other cases the adoption 
of the one rule will be found to be decisive along lines not ca- 
pable of being reached by the other unless by giving a special 
meaning thereto. 

Section 83. Test of Rank. — The representative of the em- 
ployer is most frequently termed by the courts a vice-principal, 
though the actual functions of his employment and not the 
designation by which he is known while at work will be deter- 
minative in any case. This rule has been made to extend so far 
as to relieve the employer even when the injured employee in 
good faith regarded the negligent employee as his superior, not 



LIABILITY OF EMPLOYERS FOR INJURIES 161 

knowing of the latter's discharge from that position. 1 On the 
other hand, a coservant intrusted temporarily with the duties 
of a vice-principal must be answered for by the employer no 
less than if he were permanently holding the position. Repre- 
sentation, however, must be actual. In a majority of the juris- 
dictions of the Union the mere fact of superiority of rank is not 
sufficient to charge the employer with liability for the negligence 
of the superior servant, though the negligence complained of 
may have been connected with the giving of orders. 2 Nor do 
these courts consider that the adding on of the power to hire and 
discharge is sufficient to convert a foreman of subordinate grade 
to the rank of vice-principal, as mere fear of discharge will not 
justify the assumption of undue risks. 3 And this is true even 
when there is power of control. 4 Thus it was said in a recent 
case that "a servant who sustains an injury from the negligence 
of a superior agent, engaged in the same general business, can- 
not maintain an action against their common employer, although 
he was subject to the control of such superior agent, and could 
not guard against his negligence or its consequences." 5 This 
rule is based on the theory that the contracting employee as- 
sumes the risk of his superior's negligence as one of the ordinary 
risks of his employment, but is subject to the restrictions result- 
ing from the application of the doctrine of nondelegable duties. 
This principle does not, except in a few states, extend to 

1 Allen v. Goodwin, 92 Tenn. 385, 21 S.W. 760. 

* Kimmer v. Weber, 151 N.Y. 417, 45 N.E. 860 ; McLean v. Blue Point 
G. M. Co., 51 Cal. 255. 

3 Alaska Treadwell Gold Min. Co. v. Whelan, 168 U.S. 86, 18 Sup. Ct. 40. 

* Vitto v. Keogan, 15 App. Div. 329, 44 N.Y. Supp. 1 ; Lehigh Valley Coal Co. 
r. Jones, 86 Pa. 432 ; Vilter Mfg. Co. v. Otte, 157 Fed. 230 (C.C.A.). 

5 Keenan v. New York, L. E. & W. R. Co., 145 N.Y. 190, 39 N.E. 711. 

M ;' 



162 LAW OF THE EMPLOYMENT OF LABOR 

actual superintendents or managers of an employer's business ; 
nor is it vital that such representative shall not be employed in 
part at actual labor, or that he shall receive a higher salary than 
his subordinates. No fixed rule is discoverable, but to render 
the employer liable the employee "must be more than a mere 
foreman to oversee a batch of hands and direct their work under 
the supervision of the master." 1 Or, as stated in another case 
"he must have general power and control over the business, and 
not mere authority over a certain class of work or a certain gang 
of men." 2 

Section 84. Superior Servant Doctrine. — While such is the 
rule in the greater number of American jurisdictions, what is 
known as the "superior servant doctrine" has been adopted in 
a number of states. 3 The form of this rule varies in different 
states, or even in the same court ; and there is inconsistency in 
its application to different cases, resulting from an unwilling- 
ness on the part of some courts to carry it out to its logical con- 
clusions, and from an indefiniteness as to the point where it 
shall cease to control. It was characterized as a "discredited" 
doctrine in a recent case, 4 but it is not only recognized in a num- 
ber of jurisdictions as a rule of common law, but has moreover 
received statutory recognition. 5 

The forms in which the doctrine is expressed vary, but all are 

1 Dobbin v. Richmond & D. R. Co., 81 N.C. 446, 31 Am. Rep. 512. 

2 New York, L. E. & W. R. Co. v. Bell, 112 Pa. 400, 4 Atl. 50. 

» Consol. Coal Co. v. Wombacher, 134 111. 57, 24 N.E. 627 ; Walker v. Gillett, 
59 Kans. 214, 52 Pac. 442 ; Southern R. Co. v. Barr, 21 Ky. L. R. 1615, 55 S.W. 
900 (but see Cin., N. O. & T. P. R. Co. v. Hill's Adm'r., 28 Ky. L. R. 530, 89 
S.W. 523) ; Faren v. Sellers, 39 La. Ann. 1011, 3 So. 363. 

* Lukic v. Southern P. R. Co., 160 Fed. 135. 

6 Cal., Acts 1907, ch. 97; Ohio, Gen. Code, sec. 9016; S.C., Const., Art. 9, 
sec. 15. 



LIABILITY OF EMPLOYERS FOR INJURIES 163 

to the effect that the employer is liable to an injured employee 
where his injury is caused by the exercise of the authority con- 
ferred by the employer on another employee. 

In one case 1 the following language was used: " Where the 
master appoints an agent with a superintending control over the 
work, and with power to employ and discharge hands and direct 
and control their movements in and about the work, the agent 
. . . stands in the place of the master." Various grounds are of- 
fered in support of this view, the most satisfactory one being 
that advanced in an early Ohio case, 2 in which the duty of super- 
vision and control was treated as nondelegable ; or, as stated 
in a Missouri case, 3 "the master, by appointing a foreman or 
other person to superintend the work, with power to direct the 
men under him how to do it, thereby devolves upon such person 
the performance of those duties personal to the master." 

Section 85. Status of Manager. — It has already been in- 
dicated that there are some states in which what may be called 
the " extreme view" of fellow-service is held, i.e., that even a 
general manager is a fellow-servant. 4 This may be called the 
English as opposed to the American view, as it prevails where 
the rulings of the House of Lords are the precedent ; while in 
by far the greater number of the states of this country there is 
a recognition of an actual superintendent or general manager as 
the master's representative, for whose acts the master is account- 
able. While the cases involving the question of vice-principal- 

1 Stephens v. Hannibal & St. J. R. Co., 86 Mo. 221. 

J Cleveland, C. & C. R. Co. v. Keary, 3 Ohio St. 201. (See also Little Miami 
R. Co. v. Stevens, 20 Ohio 415.) 

* Miller v. Missouri P. R. Co., 109 Mo. 350, 19 S.W. 58. 

* Curley v. Hoff, 62 N.J.L. 758, 42 Atl. 731 ; Mobile & M.R. Co. v. Smith, 59 
Ala. 245 ; Meehan v. Spiers Mfg. Co., 172 Mass. 375, 52 N.E. 518 ; Howd v. Miss. 
C. R. Co., 50 Miss. 178. 



164 LAW OF THE EMPLOYMENT OF LABOR 

ship in this form naturally disclose for the most part conditions 
of what may be considered permanent relationship, the same 
rule has been held to apply to persons occupying the position 
only temporarily ; as, for instance, in the performance of specific 
undertakings, after the completion of which the representative 
would assume his customary rank as co-employee with his tem- 
porary subordinates. Both the scope and the reason of the rule 
are in part indicated in the opinion given in a New York case, 1 
in which it was held that where the " master withdraws from the 
management of the business, or the business is of such a nature 
that it is necessarily committed to agents, as in the case of 
corporations, the master is liable for the neglects and omissions 
of duty of the one charged with the selection of the other ser- 
vants, in employing and selecting such servants, and in the 
general conduct of the business committed to his care." 

In some of the states in which the courts had favored the 
view that the fellow-servant rule extended even to employees 
in charge of work, legislative enactments have intervened, pro- 
viding that for the exercise of superintendence intrusted to any 
employee by the employer the latter should be responsible. 2 

Section 86. Heads of Departments. — On principle, a court 
that recognizes the manager of an entire business as the master's 
representative cannot well refuse similar recognition to persons 
in charge of single branches of an undertaking, as in large in- 
dustrial undertakings the head of such a branch is completely 
in control of the men under him, and the management of its 
affairs is as fully in his hands as if it were an independent 

1 Malone v. Hathaway, 64 N.Y. 5, 21 Am. Rep. 573. 

1 Ala., Code, sec. 3910 ; Mass., Acts 1909, ch. 514, sec. 127 ; Miss., Const., sec. 
193, Code, sec. 4056. 



LIABILITY OF EMPLOYERS FOR INJURIES 165 

business. Thus it has been held by the United States Supreme 
Court 1 that there is a " clear distinction to be made in their 
relation to their common principal, between servants of a cor- 
poration exercising no supervision over others engaged with 
them in the same employment, and agents of the corporation 
clothed with the control and management of a distinct depart- 
ment in which their duty is entirely that of direction and super- 
intendence." The limits of the application of this principle 
are not clearly marked. The courts making most frequent use 
of it are the federal courts, and their position may be con- 
sidered as fairly presented in the statement that it is only in- 
dividuals who are in charge of separate branches and departments 
of service, and have entire and absolute control therein, that are 
properly to be considered, with respect to employees under them, 
as vice-principals. 

Section 87. Character of Act as Test. — In cases in which 
vice-principalship is conceded there is yet a possible distinction 
as to the kind of acts for which the employer will be held re- 
sponsible. In the first place it must obviously be a negligent 
act ; and, secondly, it must be within the scope of the agent's 
authority and be connected with the proper business of his em- 
ployment. Besides these points, as to which it is only necessary 
to establish the facts in order to determine their status, the 
question of the official or nonofficial quality of the acts con- 
sidered may be raised. 

In accordance with this view, a doctrine of dual capacity has 
been developed, according to which some acts of the employer's 
representative may be taken as those of a mere servant and 
not of such a nature as to make the employer responsible for 

1 Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377, 5 Sup. Ct. 184, 



166 LAW OF THE EMPLOYMENT OF LABOR 

negligence therein. 1 In the courts adopting this "doctrine, the 
negligent performance of the so-called " nondelegable" duties by 
one who is, by virtue of his rank, conceded to be a vice-principal 
casts a burden on the employer, while the same person may, as 
a coservant, perform an act of manual labor negligently, and 
to the injury of a fellow- workman, without devolving any li- 
ability therefor upon the employer. This doctrine also has 
received statutory recognition. 2 

On the other hand are to be ranged those courts which do not 
consider that the character of a vice-principal shifts with the 
nature of his acts, holding that the master is liable for the neg- 
ligence of his representative whether the negligent act was done 
by his own hand or by another under his orders. 3 Federal cases 
supporting this view may also be found. 4 In Missouri it was 
recently declared by the supreme court that the doctrine of 
dual capacity was fully established in that state, 5 and a number 
of cases were cited in support of that view, beginning with Har- 
per v. Indianapolis and St. Louis R. Co. (47 Mo. 567, 4 Am. 
Rep. 358). It was held in a later case, however, 6 that the neg- 
ligent performance by a section foreman of ordinary labor such 

1 Reed v. Stockmeyer, 74 Fed. 186 (CCA.) ; Mann v. Oriental Print Works, 
11 RJ. 152 ; Crispin v. Babbitt, 81 N.Y. 516, 37 Am. Rep. 521 ; St. Louis, A. & 
T. R. Co. v. Torrey, 58 Ark. 217, 24 S.W. 244. 

2 Ala., Code, sec. 3910; Conn., G.S., sec. 4702; Mass., Acts 1909, ch. 514, sec. 
127. 

3 Illinois C. R. Co. v. Josey's Adm'x., 22 Ky. L. R. 1795, 61 S.W. 703 ; Consol. 
Kansas City Smelting & Ref. Co. v. Peterson, 8 Kans. App. 316, 55 Pac. 673; 
Crystal Ice Co. v. Sherlock, 37 Nebr. 19, 55 N.W. 294 ; Purcell v. Southern R. Co., 
119 N.C 728, 26 S.E. 161 ; Berea Stone Co. v. Kraft, 31 Ohio St. 287, 27 Am. Rep. 
510. 

4 Au v. New York, etc., R. Co., 29 Fed. 72 ; Hardy v. Minneapolis, etc., R. Co., 
36 Fed. 657. 

6 Fogarty v. St. Louis Transfer Co., 180 Mo. 490, 79 S.W. 664. 
6 Hutson v. Missouri P. R. Co., 50 Mo. App. 300. 



LIABILITY OF EMPLOYERS FOR INJURIES 167 

as a coservant would engage in, resulting in injury to a work- 
man in his gang, was the negligence of the employer: " There 
is no just or logical distinction between the act of the vice- 
principal in negligently ordering a servant to do an imprudent 
thing and in doing the same himself." l In Texas also decisions 
in apparent conflict may be found, some 2 denying the dual 
capacity theory, while a case of the same date 3 supports it. 
Examples of lack of harmony could be adduced from other 
states ; and, as appears from the citations given, the rulings of 
the federal courts are not uniform. 

A federal j udge in a recent case 4 declared that the test of 
rank has been largely superseded in the federal courts by the 
test of the character of the act. "The question is always," 
said the judge, "whether the negligence charged is the neglect 
of a primary and absolute duty of the master to the servant. 
If such be its character, no delegation of the performance of that 
duty to another, no matter how inferior his rank may be in the 
master's service, can relieve the liability of the master for its 
neglect; " and the characterization of the superior servant 
doctrine as discredited indicates the same view. 5 

Section 88. Tests not Mutually Exclusive. — It is not to be 
understood that the different tests of vice-principalship are 
mutually exclusive in any jurisdiction, or even in any case 
in which the question arises. The courts may approach the 

1 See further, Dayharsh v. Hannibal & St. J. R. Co., 103 Mo. 570, 15 S. W. 554, 
and Russ v. Wabash W. R. Co., 112 Mo. 45, 20 S.W. 472. 

2 Sweeny v. Gulf, etc., R. Co., 84 Tex. 433, 19 S.W. 555 ; Texas & P. R. Co. ». 
Reed, 32 S.W. 118 (Tex. Civ. App.). 

3 Gulf, C. & S. F. R. Co. v. Schwabbe, 1 Tex. Civ. App. 573, 21 S.W. 706. 
* Peters v. George, 154 Fed. 634. 

6 Lukic v. Southern P. R. Co., 160 Fed. 135. 



168 LAW OF THE EMPLOYMENT OF LABOR 

question in either way, or, as frequently happens, expressions are 
used in a single case which refer some to one and some to the 
other method of determining the point at issue. The general 
result of using the test of the character of the act may be said to 
be favorable to the employee, since under it "an act of the mas- 
ter" may be performed by an employee of whatever rank; 
though obviously it favors the dual capacity theory, and tends 
in so far to limit recovery for the acts of a superior. 

It is clear that the opportunity for litigation, in connection 
with the application of the test of the character of the act, lies 
not so much in the acceptance or rejection of general principles, 
or of the doctrine of representation as such, for a determination 
of these points having been once made in a jurisdiction they may 
be said to be the local law ; rather, the numerous accumulated 
decisions bear mainly on the question of the boundaries between 
the field covered by the doctrine of nondelegable duties and 
that covered by the fellow-servant doctrine, or, as otherwise 
expressed, between "the act of a master and the act of an em- 
ployee," boundaries which are, as has been said with good reason, 
"sometimes quite vague and shadowy." Thus it is established 
that one of the employer's duties is to use due care to furnish 
and maintain a safe place to work, while a negligent act on the 
part of an employee may at any moment render a place unsafe 
for his co-employees. When or at what point liability attaches 
is a question that comes before the courts to be determined on 
the merits of the particular facts, and, apart from precedents 
presenting a practical identity of conditions, the question may 
be fairly considered an open one. Certain general principles 
are, of course, settled in any case, but, after all, there 
remains an undetermined margin on the merits of which 



LIABILITY OF EMPLOYERS FOR INJURIES 169 

the plaintiff grounds his undertaking for a recovery, hoping 
that in his particular case the scales will turn in his favor, so 
that instead of conclusive classifications being formed, it appears 
rather that the volume of litigation relating to this department 
of the law of employers' liability is steadily growing. 

Section 89. Modification of Employers' Liability by Statute. — 
It appears to be the consensus of legislative opinion that of all 
the weak points in the American law of employers' liability, the 
one that presents the most objectionable features is that repre- 
sented by the fellow-servant doctrine. At least it is to this 
phase that legislatures have most frequently addressed them- 
selves, one, that of Colorado, having achieved the sole distinction 
of completely abrogating the doctrine. 1 This statute was de- 
clared constitutional by the supreme court of the state, 2 the 
court ruling that the act renders the employer liable for damages 
resulting from injuries to an employee, caused by the negligence 
of a co-employee, in the same manner and to the same extent as 
if the negligence were that of the employer. The law does not 
affect the defenses of assumed risks or contributory negligence. 

Liability laws patterned more or less closely after the British 
law of 1880 on this subject have been enacted in a number of 
jurisdictions. 3 These acts are frequently referred to as " fellow- 
servant laws," since their principal feature is the abrogation, 
as to the classes of employees enumerated and under the condi- 

1 Supp., sees. 151 If, 151 lg. See also pp. 186, 197, 198. 

1 Vindicator Consol. Min. Co. v. Firstbrook, 36 Colo. 499, 86 Pac. 313. 

»Ala., Code, sec. 3910; Cal., Acts 1907, ch. 97; Colo., Supp. sees. 1511a 
-1511e; Idaho, Acts 1909, p. 34; Ind., A.S., sec. 7083; Me., Acts 1909, ch. 
258; Mass., Acts 1909, ch. 514, sees. 127-134; Mich., Acts 1909, No. 104; 
N.J., Acts 1909, ch. 83 ; N.Y., Acts 1910, ch. 352 ; Pa., Acts 1907, No. 329 ; 
P.R., R.S., sees. 322-331 ; and Texas, Acts 1909 (extra session), ch. 10. 



170 LAW OF THE EMPLOYMENT OF LABOR 

tions specified, of the defense of common employment. 1 The 
introductory provision as to defects in ways, etc., adds little or 
nothing to the common law rule as followed in this country as 
to the duty of the employer as to safe places and appliances. 2 
The same may be said of the provision relative to the reporting 
of facts by the employee, if cognizant thereof ; though as most 
of the statutes make the employee's failure to report a bar to 
his recovery, if injured, while at common law such failure was 
only an added reason why he could not, under such circum- 
stances, recover, it may be said that this provision places an 
employee who knows of the defect in a more unfavorable posi- 
tion than before, so far as the question of the assumption of 
risk is concerned. Nor do these laws much affect the defense 
of contributory negligence. They are chiefly effective in their 
determination of responsibility for the acts of superiors, and of 
designated classes of employees on railroads. As to superiors, 
it may be noted that different laws recognize both the superior 
servant 3 and dual capacity 4 doctrines. The California statute 
distinctly presents the departmental doctrine ; so that it is clear 
that even the enactment of statutes which clearly enlarge the 
employer's responsibility, as do these, do not secure uniformity, 
since they are both differently phrased and differently con- 
strued. 

The rule that statutes in derogation of the common law will 
be strictly construed has generally been modified by the state 
courts in respect of the acts above discussed, in order that the 



1 Coffee v. New York, etc., R. Co., 155 Mass. 21, 28 N.E. 1128. 
8 Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N.E. 766. 

• Kansas City, M. & B. R. Co. v. Burton, 97 Ala. 240, 12 So. 88. 

* Gmaehle v. Rosenberg, 178 N.Y. 147, 70 N.E. 411. 



LIABILITY OF EMPLOYERS FOR INJURIES 171 

manifest ends of the laws may be attained. 1 They in no way 
interfere with the common law rights of an injured employee, 
and he may, if he prefers, bring his action at common law instead 
of under the statute. 

Section 90. Statutes Affecting Designated Employments. — A 
very considerable number of states have laws applying specifi- 
cally to the business of railroading, some of them applying to all 
employees, and some only to those engaged in the operation of 
the road. These laws range in effect from the slightest possible 
deviation from the principles of the common law to a complete 
abrogation of the defense of fellow-service, and important 
changes in those of contributory negligence and of assumed 
risks. 

The constitutionality of laws relating to railroads only has 
been repeatedly decided in their favor in the face of contentions 
that they are discriminatory, not affording railroads equal pro- 
tection with other businesses, and that the laws deprive railroad 
companies of their property without due legal process, thus 
alleging that such laws are in conflict with the fourteenth amend- 
ment of the Constitution of the United States. The Kansas 
statute abrogating the defense of fellow-service was attacked 
in the United States Supreme Court, 2 which declared the law 
valid, using in part the following language, which shows the 
general grounds on which such laws are upheld : — 

"The greater part of all legislation is special, either in the 
objects sought to be ascertained by it, or in the extent of its 
application. Such legislation does not infringe upon the clause 
of the fourteenth amendment requiring equal protection of the 

» Mobile & B. R. Co. v. Holborn, 84 Ala. 133, 4 So. 146. 

» Missouri P. R. Co. v. Mackey, 127 U.S. 205, 8 Sup. Ct. 1161. 



172 LAW OF THE EMPLOYMENT OF LABOR 

laws, because it is special in its character. When legislation 
applies to particular bodies or associations, imposing upon them 
additional liabilities, it is not open to the objection that it 
denies to them the equal protection of the laws, if all persons 
brought under its influence are treated alike under the same 
conditions. The hazardous character of the business of operat- 
ing a railway would seem to call for special legislation with 
respect to railroad corporations, having for its object the pro- 
tection of their employees as well as the safety of the public. 
The business of other corporations is not subject to similar 
dangers to their employees, and no objections, therefore, can be 
made to the legislation on the ground of its making an unjust 
discrimination. It meets a particular necessity, and all railroad 
companies are, without discrimination, made subject to the 
same liabilities." 

Special laws relating to mine labor x receive judicial support 
on the grounds set forth in the case just cited. 2 

Section 91. Promise to Repair. — In cases where repairs 
are needed, and the fact is known to the servant, the risk in- 
volved in continuing in the service under the conditions of dis- 
repair may be shifted to the employer by his giving a promise 
to remedy the defective conditions, and the effect of the promise 
is the same whether it is made in response to a complaint by 
the servant or voluntarily. 3 The fact that a promise was made 
does not suffice to conclude the investigation, however, but 
serves only to introduce new facts for consideration. The 

i Md., Acts 1902, ch. 412 ; Mo., Acts 1907, p. 251 ; 111., R.S., ch. 93 ; Ohio, 
Acts 1910, p. 52. 

1 State v. Murlin, 38 S.W. 923 (Mo.) ; Wilmington Star Min. Co. v. Ful- 
ton, 205 U.S. 60, 27 Sup. Ct. 412. 

» Virginia & N. C. Wheel Co. v. Chalkley, 98 Va. 62, 34 S.E. 976. 



LIABILITY OF EMPLOYERS FOR INJURIES 173 

promise must be made by the employer or his representative, 
and must be the inducement for the employee's continuance in 
the situation where the injury occurred. 1 

Though the effect of such a promise is not entirely excluded 
from consideration in cases where it was given before the be- 
ginning of work, the doctrine applies chiefly to cases where it 
was made subsequent to such beginning. It is then held to 
rebut for a reasonable length of time the presumption that the 
employee assumed the risk or that he was guilty of contributory 
negligence in remaining in a place of known danger, though it 
does not of itself entitle an injured employee to recovery. 2 

Section 92. Direct Orders. — The fact that an employee was 
acting under direct orders at the time his injury was received is 
also influential in determining his right to recover where such 
order had been given. 3 The order must be given by the em- 
ployer or his representative acting with due authority, though it 
may reach the employee through an intermediary ; it must also 
be the cause of the action which resulted in the injury and it 
must be of itself negligent under existing circumstances. 4 When 
these conditions are met, a presumption is raised in the em- 
ployee's favor, either that he was excusably ignorant of the 
risks to which his obedience exposed him or that his action was 
in some degree coerced, so that the employer's customary de- 
fenses of assumed risk and of contributory negligence are pro- 
portionately, though not absolutely, negatived. If the order 

i Bodwell v. Mfg. Co., 70 N.H. 390, 47 Atl. 613. 

2 Counsell v. Hall, 145 Mass. 468, 14 N.E. 530 ; Virginia & N.C. Wheel Co. v. 
Chalkley, supra. 

a Haley v. Case, 142 Mass. 316, 7 N. E. 877. 

* Patterson v. Pittsburg & C. R. Co., 76 Pa. 389, 18 Am. Rep. 412 ; Richmond 
& D. R. Co. v. Rudd, 88 Va. 648, 14 S.E. 361. 



174 LAW OF THE EMPLOYMENT OF LABOR 

does not direct exposure to other than the ordinary, assumed 
risks, no negligence can be charged to the master in connection 
therewith. Neither do the courts hold him negligent where he 
was ignorant, actually and without fault, of the dangers to 
which a servant would be exposed by obedience. But where 
the employer knew of the danger and failed to warn the servant, 
and still more where the servant was both ignorant and incapa- 
ble, physically and mentally, of safely performing the work 
directed, the order will be held negligent and the employee will 
be entitled to recover for resulting injuries. 

Section 93. Assurances of Safety. — In connection with a 
direct order, or in response to some complaint or inquiry of the 
employee, an employer may give assurances of the employee's 
safety. This may be in the form of a statement that the work 
does not involve danger or that the workman will be protected 
in its performance. Where such an assurance is given by an 
authorized person, and it is negligently given, so that the em- 
ployee is thereby induced to do work or to enter a place other 
than would probably have been the case apart from the assur- 
ance, the employee will not be, as a matter of law, chargeable 
with either an assumption of the risk or with contributory neg- 
ligence if injury results. 1 This rule is subject to the same quali- 
fications, on grounds of the actual knowledge of the employee 
and his going into places of obvious danger, as have been set 
forth in other connections. 2 Yet, inasmuch as the law regards 
the employer's knowledge of the conditions of the employment 
as superior to that of the employee, it considers his assurance of 
safety, especially when accompanied by an order to proceed, to 

1 Larson v. Haglhi, 103 Minn. 257, 114 N.W. 958. 

J Atlantic C. L. R. Co. & Beazley, 54 Fla. 311, 45 So. 761. 



LIABILITY OF EMPLOYERS FOR INJURIES 175 

be sufficient warrant for the employee to lay aside his scruples 
and to proceed with perhaps less vigilance than he would have 
otherwise exercised. 

Section 94. Variation of Scope and Course of Employment. — 
The principles controlling the liability of the employer have 
been considered only in their application to cases where the in- 
jury was received by a servant engaged in the duties for which 
he was specifically or impliedly hired. If the employee leaves 
his customary work voluntarily and goes where he has no right 
to be or undertakes to use machinery which it is not his business 
to use, he is no better than a trespasser to whom his master owes 
no duty. 1 Acquiescence by the employer in the conduct of 
the employee may be construed, however, as extending the 
scope of employment to the new line of duties, carrying the 
corresponding mutual obligations. Where the act is for the 
employer's benefit it may be decided as a matter of fact that 
it was reasonably a part of the employee's duty, though in the 
absence of both command and acquiescence recovery would be, 
to say the least, doubtful. 

The case is different where there is a specific direction from 
the employer or other competent person ordering a temporary 
departure from the contractual lines of duty. The risks inci- 
dent to the new employment are in a sense extraordinary, as 
they are outside of the regular line of duty and were not as- 
sumed under the contract relative thereto. The elements neces- 
sary to a recovery in case of injury resulting from the under- 
taking of such work are : that the departure from the regular 

1 Stagg v. Edward Western Tea & Spice Co., 169 Mo. 489, 69 S.W. 391 ; 
Green r>. Brainerd & N. M. R. Co., 85 Minn. 318, 88 N.W. 974 ; Stodden v. Mfg. 
Co., 138 Iowa 398, 116 N.W. 116. 



176 LAW OF THE EMPLOYMENT OF LABOR 

employment should be substantial; that it should be in obedi- 
ence to the orders of a competent person; and that the order 
given be negligent. 1 The mere fact that the work was not that 
for which the employee contracted is not enough, since a com- 
mand of the employer and obedience without objection by a 
person of mature years and ordinary capacity present in them- 
selves no conditions of culpability. If, however, the master 
knew of some unfitness on the part of the servant or of some 
increased danger in the new situation of which the employee 
was uninformed, the giving of the order may be considered as 
negligent. In the absence of grounds on which to support the 
charge of negligence, workmen will generally be considered as 
assuming the risk of the new undertaking, in so far as they are 
known or are of that open and patent character that charges a 
person of ordinary intelligence with a knowledge of them. 2 

Contributory negligence is not ordinarily allowed as a defense 
to an employer giving orders for a departure from the usual line 
of service, the reason therefor being practically that given above 
where the question of obedience to direct orders was discussed, 
i.e., that a person will not be heard to say that it is negligence 
to carry out his own orders. One cannot, however, enter upon 
a work involving obvious and extreme risks and claim the em- 
ployer's protection in so doing, nor can he enter on work for 
which, he knows himself to be essentially unfitted but as to 
which he makes no protest or objection. Still the presumption 
that the employer is better informed as to the conditions of the 
work and the necessary qualifications for doing it properly, and 
the rule of the customary duty of obedience to a superior, will 
serve to relieve the employee even in such cases. 

» Galveston Oil Co. v. Thompson, 76 Tex. 235, 13 S.W. 60. 
■ Felton v. Girardy, 43 C.C.A. 439, 104 Fed. 127. 



LIABILITY OF EMPLOYERS FOR INJURIES 177 

The variety of facts involved in cases presenting the question 
of course of employment is so great that it would practically 
require an enumeration of the decisions to present the attitude 
of the courts thereon. The general rule has been mentioned, 
i.e., that the employer is not liable for injuries incurred by em- 
ployees going beyond the scope of their employment. They 
approximate the condition of volunteers, with whom they are 
sometimes classed. By the term " volunteers" is meant per- 
sons not in the service of the employer prior to their engaging, 
without authorization, in the employment at which they received 
the injury complained of, and their situation is in general no 
better than that of trespassers. They are held to have assumed 
the limitations of servants without acquiring the right to claim 
the performance of a master's duties toward them. 1 They will 
be protected from wanton injuries at the hands of the regular 
employees, however, 2 and the circumstances may be such that 
they will be held to warrant a service rendered at the invitation 
of persons not ordinarily authorized to hire employees so as to 
give to injured volunteers a right to recover. 3 Or it might be 
said that the situation of the persons so employed is modified 
so that they are no longer regarded as volunteers, at least not as 
trespassers. 

The reason for the rule as to volunteers is that no one can be 
subjected to the obligations of an employer, which are the result 
of contract, without his consent thereto, either express or im- 
plied. This being the case, the situation of a person under- 

» Langan v. Tyler, 114 Fed. 716 (C.C.A.). 

2 Kentucky C. R. Co. v. Gastineau, 83 Ky. 119; Evarts v. St. Paul, M. & 
M. R. Co., 56 Minn. 141, 57 N.W. 459. 

■ Bradley v. New York C. R. Co., 62 N.Y. 99 ; Barstow v. Old Colony R. Co., 
143 Mass. 535, 10 N.E. 255. 



178 LAW OF THE EMPLOYMENT OF LABOR 

taking to render service, either on his own motion or at the 
invitation of an unauthorized person, gains nothing from the 
fact that the danger was not appreciated. 

Section 95. Details of Work. — A general limitation of the 
obligations of the employer is to be found in the rule that he is 
not bound to supervise the purely operative details of his em- 
ployees' undertakings. He will not be responsible, therefore, 
for merely transitory dangers, " existing only on the single oc- 
casion when the injury was sustained, and due to no fault of 
plan or construction, or lack of repair, and to no permanent 
defect or want of safety in the defendant's works, or in the 
manner in which they had been ordinarily used." 1 So, also, if 
the danger arises in the progress of the work and is one of the 
understood conditions of such progress, no liability attaches 
to the employer. 

The improper use of suitable instrumentalities, or failure to 
use those furnished, erroneous choice of methods of work, or 
improper orders and assignments of subordinates to duty are 
acts of a superior, for which the employer will not in general be 
held responsible. 2 In order that the employer may be so re- 
lieved, however, it has been held to be necessary that the in- 
jured employee should have knowledge of his superior's lack of 
authority in respect of the order given. 3 In the same category are 
found the giving of signals, the transmission of orders, and the 
manipulation of instrumentalities (e.g., cars on railway tracks) 
during the progress of work. 4 The adjustment of temporary 
structures and appliances used in the course of the work are 
within the rule of nonliability. 

» Meehan v. Spiers Mfg. Co., 172 Mass. 375, 52 N.E. 518. 

2 Cullen v. Norton, 126 N.Y. 1, 26 N.E. 905. 

8 Waiczenko v. Oxford Paper Co., 106 Me. 108, 75 Atl. 328. 

< Martin v. Atchison, T. & S. F. R. Co., 166 U.S. 399, 17 Sup. Ct. 603. 



LIABILITY OF EMPLOYERS FOR INJURIES 179 

The reverse has been held where the appliance causing the 
injury was furnished by the employer himself, where there was 
an implied undertaking that the appliance furnished should be 
in a completed condition, where the employer failed to furnish 
suitable material for the preparation of an instrumentality, 
where the employee did not have free choice in the selection of 
materials, and where the danger resulted from conditions which 
might properly be classed as permanent. 

Section 96. Contracts with Labor Organizations. — A factor 
of minor importance hitherto, but involving possibilities of 
considerable moment, is one appearing in connection with con- 
tracts in which associations of workmen retain for themselves 
the right to indicate the employment of certain persons as fel- 
low-workmen, foremen, or for the performance of special duties 
in connection with the employer's undertaking Such a contract 
operates as a restriction on the employer's right to freely con- 
tract for and direct the services of his employees, and in equal 
measure diminishes his liability for their actions. Thus, where 
a contractor deals with representatives of an organization, who 
furnish him the desired number of men, with a foreman, none of 
them being of his selection, he will not be held responsible for 
the injury of a workman resulting from the negligence of the 
foreman ; * and the same view was taken in a case involving the 
employment of a shot-firer by the members of a union made up 
of the employees in a mine. 2 A contrary conclusion was reached 
in a case involving much the same conditions, the court saying 
that it was, in any case, incumbent on the employer to make 
reasonable effort to ascertain the competency and fitness of an 

1 Farmer v. Kearney, 115 La. 722, 39 So. 967. 

* Edward's Admr. v. Lam., 132 Ky. 32, 119 S.W. 175. 



180 LAW OF THE EMPLOYMENT OF LABOR 

employee requiring special qualifications, regardless of his con- 
tract with the association ; l in view of the nature of the contract 
and the clear intention of the parties to secure to the union the 
ordering of the very details involved in the arrangement, it 
would seem that the better reason sustains the views of the 
courts of Louisiana and Kentucky. 

Section 97. Employers 7 Insurance against Liability. — Em- 
ployers' liability insurance is a form of insurance by which the 
insuring company assumes either the liability of the employer 
for injuries to his employees, or the duty of making good the 
losses of the employer on account of such liability The com- 
pany usually agrees to undertake the defense in case action is 
brought in a court of law, and conditions in the policy as to 
notice of accidental injuries and of proposed suits must be com- 
plied with ; 2 though the courts will give a reasonable con- 
struction to the language used. 3 Where the policy limits the 
company's liability to a reimbursement of sums paid out by the 
insured employer on account of damages paid after trial of the 
issue, no action lies by an employee of an absconding employer, 4 
nor an insolvent one, 5 since it is the employer and not the em- 
ployee who is insured, and, no payment having been made by 
the former, no liability under the policy rests on the company; 
or, as said in another case, such a policy is not a contract of 
insurance against liability, but of indemnity against loss by 

1 Pearson v. Steamship Co., 51 Wash. 560, 99 Pac. 753. 

8 Deer Trail Consol. Mining Co. v. Maryland Casualty Co., 36 Wash. 46, 78 
Pac. 135. 

3 Columbia Paper Stock Co. v. Fidelity, etc., Co. of New York, 104 Mo. App. 
157, 78 S.W. 320. 

* Connolly ». Bolster, 187 Mass. 266, 72 N.E. 981. 

* Carter v. JStna Life Ins. Co., 76 Kan. 275, 91 Pac. 178. 



LIABILITY OF EMPLOYERS FOR INJURIES 181 

reason of liability. 1 The company's contract to defend in an 
action against an employer is valid and its interest is sufficient 
to protect it against the charge of wrongfully maintaining the 
employer in the suit against him. 2 

In case of the insolvency of an insured employer, an assign- 
ment of assets is equivalent to a settlement of a perfected claim 
against himself, so far as the company is concerned, and it be- 
comes at once liable for the pro rata sum that the judgment of 
the injured employee would produce in the settlement of the 
estate of the insolvent, and no more ; the injured employee may 
by a cross-bill in action against the company by the trustee 
secure the payment of such amount to himself. 3 A settlement 
by the company made in good faith with an employer for a 
judgment obtained against him cuts off all recovery as against 
the company, however, even though it transpires that the em- 
ployer was in fact insolvent at the time, and had paid nothing 
on the judgment ; 4 a fortiori, a settlement of a judgment against 
an insolvent employer by the payment by him of an agreed 
reduced sum, such sum being known to the employee as coming 
from the insuring company, will prevent any further recovery 
from the company by the employee. 5 

: If the policy insures the employer against liability on account 
of injuries to employees, however, the company assuming the 
defense in legal proceedings and settlement of any loss ; or if it 
stipulates that the company shall pay "all damages with which 
the insured might be legally charged, or required to pay or for 

1 Frye v. Gas & Electric Co., 97 Me. 241, 54 Atl. 395. 

1 Breeden v. Frankfort, etc., Ins. Co., 220 Mo. 327, 119 S.W. 576. 

* Moses v. Travelers' Ins. Co., 63 N.J. Eq. 260, 49 Atl. 720. 

* Kinnan v. Fidelity & Casualty Co., 107 111. App. 407. 
B Breeden v. Frankfort, etc., Ins. Co., supra. 



182 LAW OF THE EMPLOYMENT OF LABOR 

which it might become liable," the contract inures directly to 
the benefit of the employee to such an extent that he may, after 
judgment against the employer and without waiting for settle- 
ment, secure the payment to himself of the amount of the judg- 
ment by proceedings in garnishment against the company, 1 
and the fact of the employers' making an assignment in bank- 
ruptcy before the suit was begun does not reduce or otherwise 
affect the claim of the employee against the ompany, 2 since the 
liability is fixed on the happening of the injury giving rise to the 
claim, even though the amount thereof has not yet been deter- 
mined. 3 

Where the employer takes out a blanket policy, and separate 
certificates are issued to the individual employees, from whose 
wages deductions are made by the company for the payment of 
premiums, the failure of the insurance company to pay the 
amount of the policy entails no obligation on the employer, 
only the company being liable. 4 

A policy covering accidental injuries was held to require an 
insurance company to reimburse an employer who had been 
compelled to pay damages on account of bodily disease con- 
tracted by an employee who was put to work in an insanitary 
employment ; 5 a policy will not be construed to extend to 
classes of employees hired during the term of its existence, but 
engaged in a different kind of employment from that contem- 

1 Hoven v. Employers' Liability Assurance Corp., 93 Wis. 201, 67 N.W. 46 ; 
Anoka Lumber Co. v. Fidelity & Casualty Co., 63 Minn. 286, 65 N.W. 353 ; 
Pickett v. Fidelity & Casualty Co., 60 S.C. 477, 38 S.E. 160. 

2 Anoka Lumber Co. v. Fidelity & Casualty Co., supra. 

8 Boston & A. R. Co. v. Mercantile Trust & Deposit Co., 82 Md. 535, 34 Atl. 
778 ; Ross v. Am. Emp. Liability Ins. Co., 56 N.J. Eq. 41, 38 Atl. 22. 
* Carpenter v. Chicago & E. I. R. Co., 21 Ind. App. 88, 51 N.E. 493. 
6 Columbia Paper Stock Co. v. Fidelity, etc., Co. of New York, supra. 



LIABILITY OF EMPLOYERS FOR INJURIES 183 

plated by its terms, 1 but employment necessarily incidental to 
the operations embraced by the policy will be held to be covered 
thereby, even though not strictly of the class of operations 
described in it. 2 On the other hand, the similarity of construc- 
tion work to repair work will not bring the former within the 
provisions of a policy intended to cover only the latter. 3 If the 
contract of insurance stipulates that the company will not be 
liable for injuries resulting from the employer's failure to main- 
tain the safety devices and appliances prescribed by law, the 
company cannot withdraw from the defense of an action on the 
mere charge of such failure, but must proceed until the question 
is determined in the course of trial. 4 Such a provision in a 
policy is not repugnant to a general undertaking to indemnify 
the insured employer against loss from common law or statutory 
liability to his employees. 5 Nor will the provision in a policy 
prohibiting compromises by employers bar the employer's 
claim to an indemnity where the company denied its liability 
and refused to defend, and the employer compromised the claim 
against him. 6 Where the company assumes the defense of an 
action and conducts it negligently, to the loss of the employer, 
it is liable to him for the loss sustained. 7 

« Wollman v. Fidelity & Casualty Co., 87 Mo. App. 677. 

2 Fidelity & Casualty Co. of New York v. Lone Oak Cotton Oil & Gin Co., 
35 Tex. Civ. App. 260, 80 S.W. 541 (carpenter employed to install machinery in a 
cotton oil mill) ; Hoven v. Employers' Liability Assurance Corp., 93 Wis. 201, 67 
N.W. 46 (policy covering operations connected with business of iron and steel 
works embraces construction of building for use of employer in business). 

3 Home Mixture Guano Co. v. Insurance Co., 176 Fed. 600. 

* Glens Falls Portland Cement Co. v. Travelers' Ins. Co., 162 N.Y. 399, 56 
N.E. 897. 

6 Chicago-Coulterville Coal Co. v. Fidelity & Casualty Co., 130 Fed. 957. 

8 St. Louis Dressed Beef, etc., Co. v. Maryland Casualty Co., 201 U.S. 173,26 
Sup. Ct. 400. 7 Attleboro Mfg. Co. v. Insurance Co., 171 Fed. 495. 



184 LAW OF THE EMPLOYMENT OF LABOR 

The stipulation that the insuring company shall be liable for 
only those damages with which the employer may be charged 
after a compliance with the law would of itself point toward 
nonliability where a person was employed contrary to statute, 
though the employer might be himself liable. Policies contain- 
ing a provision that the company is not liable for injuries to 
children employed in violation of minimum age laws therefore 
allow no recovery in case such an illegally employed person is 
injured, though judgment runs against the employer. 1 

The states of Illinois 2 and South Carolina 3 have laws looking 
to the formation of mutual insurance companies by employers, 
with a view to affording members insurance or indemnity in 
cases of loss on account of accidents occurring in connection 
with their business. The Illinois law restricts membership to 
persons engaged in the same class of manufacturing or mining, 
and requires not less than twenty incorporators. 

Section 98. Insurance of Employees. — A law of Maryland 4 
provided for cooperative insurance, in the form of a fund to 
which steam and street railway companies, owners of mines and 
quarries, and municipalities engaged in sewer construction and 
similar work might contribute according to a fixed scale adjusted 
to the nature of the employment. An amount equal to one half 
the payments might be withheld from the wages of the employees 
after notice. The resulting fund was to be administered by 
the insurance commissioner of the state, only cases of accidental 
death being provided for by the payment of a uniform sum. 
The law contained a provision that contributors to the fund were 

1 Mt. Vernon Woodberry Duck Co. v. Insurance Co., Ill Md. 561, 75 Atl. 
105 ; Frank Unnewehr Co. v. Insurance Co., 176 Fed. 16, 99 CCA. 490. 
J R.S., ch. 73, sees. 309, et seq. 
* Acts 1903, No. 40. * Acts 1902, ch. 139. 



LIABILITY OF EMPLOYERS FOR INJURIES 185 

to be exempt from all other forms of liability, thus depriving the 
employee of his right of action for damages either at common 
law or under the statutes of the state ; and on this ground the 
law was held to be unconstitutional. 1 

A later law of the same state 2 undertakes to provide a co- 
operative insurance plan for coal and clay miners in certain 
counties of the state. Employers and employees are to make 
equal contributions to a fund which is to be collected and held 
by the treasurers of the counties. Administration devolves on 
the county commissioners. Fixed amounts are named for 
compensation in cases of death, of maiming of various described 
kinds, for injuries not resulting in maiming, and for medical 
and burial expenses. Suits for damages may be brought, but 
doing so bars compensation rights, and, conversely, the accept- 
ance of compensation bars the right to sue. A somewhat similar 
law has been enacted by the legislature of Montana, 3 applicable 
to workmen, laborers, and employees in and around coal mines 
and coal washers, excepting office employees, superintendents, 
and general managers. Insurance under this law is mandatory, 
the funds to be provided by deductions from the wages of all 
employees coming within its provisions, and by fixed payments 
by the employers based on the amount of coal mined per month. 
The fund is to be administered by the state treasurer. Injured 
employees or their representatives may sue to recover damages 
independently of the provisions of the act, but the commence- 
ment of a suit of this nature will operate as a forfeiture of the 
right to benefits under the act. 

1 Franklin v. United Railway & Electric Co., Ct. of Common Pleas of Balti- 
more, opinion filed Apr. 27, 1904. 

» Acts 1910, ch. 153 (p. 484). » Acts 1909, ch. 67. 



186 LAW OF THE EMPLOYMENT OF LABOR 

Of broader scope, covering in fact the principal lines of in- 
dustrial employment, is the workmen's insurance law of Wash- 
ington x which requires all employers in designated industries, 
classed as " extra-hazardous,' ' to pay into a state accident fund 
certain amounts as premiums. These premiums are based on 
the nature of the employment and the number of workmen 
therein, and constitute a fund from which payments are to be 
made to workmen suffering from injury caused by accident 
occurring in the course of employment. Employers in other 
industries than those designated may elect to adopt the pro- 
visions of the insurance law, whereupon they are relieved from 
other liability. The legislatures of Massachusetts 2 and Ohio 3 
have enacted laws of similar general import with that of Wash- 
ington, though not compulsory, and applicable to all classes of 
employers who accept their provisions. In Ohio, the classifica- 
tion of risks and the fixing of premium rates are committed 
to a state liability board, which is charged with the administra- 
tion of the law generally, while in Massachusetts a state in- 
dustrial accident board administers the law. While employers 
may exercise their choice in accepting the provisions of the stat- 
ute, if they fail to do so, they are liable for damages resulting 
from injuries to their workmen, and cannot offer as defenses 
either assumption of risks, fellow-service, or contributory neg- 
ligence. The Massachusetts act was pronounced constitu- 
tional in an advisory opinion of the supreme court of the 
state, 4 in which were considered both the abrogation of the 
common law defenses and the adoption of the voluntary in- 
surance scheme as a substitute for liability. 

1 Acts 1911, ch. 74. 2 Act approved July, 28, 1911. 

1 Act approved June 15, 1911. * Opinion delivered July 24, 1911. 



CHAPTER VIII 



WORKMEN S COMPENSATION LAWS 



Section 99. Federal Compensation Law of 1908. — The 
British law of employers' liability, both as construed by the 
courts of England in common law actions and as enacted in the 
legislation of 1880, has been of large influence in directing the 
course of action in this country, both legislative and judicial. 
At the present time, the principles that control in the United 
States are of comparatively small and diminishing importance 
in Great Britain, on account of the adoption in that country in 
1897 of a compensation act by virtue of which the injured em- 
ployee secures, not a right of action for damages, but a grant 
of compensation payable by the proprietor of the business in 
which the employee was injured. This principle, generally 
adopted by more than a score of the industrial countries of the 
world, received recognition to a limited extent by an act of 
Congress of May 30, 1908, 1 which grants to "any person em- 
ployed by the United States as an artisan or laborer in any of 
its manufacturing establishments, arsenals, or navy yards, or 
in the construction of river and harbor or fortification work or 
in hazardous employment on construction work in the reclama- 
tion of arid lands or in the management and control of the same, 

1 Acts 1907-1908, ch. 236 (35 Stat. 556). 
187 



188 LAW OF THE EMPLOYMENT OF LABOR 

or in hazardous employment under the Isthmian Canal Com- 
mission," compensation for injuries received in the course of his 
employment not due to his own negligence or misconduct. The 
amount of compensation is the rate of pay that would have been 
received by the employee if he had continued to be employed, 
this point being determined altogether by the employing office. 
This provision of the law gives the injured employee the benefit 
of any increase affecting employees of his group and class during 
the continuance of his compensation payments. Payments 
continue during disability, but for a period limited to one year 
from the beginning of the disability caused by the injury. In 
case the injury results in death, the widow, child or children 
under sixteen years of age, or a dependent parent, are entitled 
to compensation of the same amount as would have been pay- 
able to the employee if he had survived. No compensation is 
provided unless the injuries cause disability for more than fifteen 
days. Claims must be filed within a " reasonable time/' the 
statute limiting the time for filing death claims to not more than 
ninety days after the death on account of which the claim is 
made. Injured persons receiving compensation must be ex- 
amined as often as directed by the Secretary of Commerce and 
Labor, at least once every six months. In practice this exami- 
nation is sometimes waived where the disability is obviously 
permanent, but the effect of the provision is usually to limit ap- 
provals of claims to six-month periods, subject to extension on 
a proper showing at the expiration of the period. Where a 
person is only partially incapacitated, and is able to do light 
work, but not to resume the duties of his regular employment, 
it has been held that the claim for compensation may be ap- 
proved for the period of a year, even though there may be some 



WORKMEN'S COMPENSATION LAWS 189 

employment during the time, inasmuch as he is entitled to a 
year's wages at the old rate, and is therefore entitled to the pro- 
tection of such an approval. 

The administration of the act is committed by the act itself 
to the Secretary of Commerce and Labor, who is authorized to 
make necessary rules for the award and payment of the benefits 
accruing under its provisions. He is also authorized to deter- 
mine all questions of negligence or misconduct, so that the law 
is practically removed from the field of litigation, its construc- 
tion by the Secretary on the points most frequently causing 
dispute not being subject to judicial review. The doctrine of 
assumed risks is absolutely eliminated, as is the defense of 
fellow-service, the trade risk falling on the beneficiary of the 
undertaking, where it would seem properly to belong in every 
instance ; and no employee is held accountable for the mis- 
conduct of a fellow, of whose actions he is often inevitably 
ignorant, and over whom he has usually no power of control, 
even indirectly. 

The sundry civil bill for the year 1912 (act of March 4, 1911, 
Public, No. 525), extended the benefits of this law to all em- 
ployees under the Isthmian Canal Commission, eliminating the 
question of hazardous employment, and provided that the ad- 
ministration of the law in its application to such employees 
should devolve upon the chairman of the Commission. It also 
extended the time for filing death claims to one year. 

In administering the law, a liberal construction has been 
adopted, following in general the definitions and rulings of the 
common law as to the terms " artisan or laborer," " course of 
employment," " negligence or misconduct," and " dependence," 
but relaxing in a measure the rule as to what should be con- 



190 LAW OP THE EMPLOYMENT OF LABOR 

sidered negligence of such nature as to bar a claim, with a view 
to carrying out the evident beneficial intent of the act. Illegit- 
imate children are held to be entitled to the benefits of the stat- 
ute, as it is not one relating to inheritance, and the statute uses 
the term "child or children " in an unqualified and presumably 
in a popular sense, as offspring. Trade diseases, as lead poison- 
ing, do not support a claim for compensation, since the idea of 
the word "accident " is held to imply a more definite point of 
time than would be the case where cumulative effects are the 
results of causes operating through a long period. Still less can 
compensation be allowed for cases of illness caused merely by 
exposure during employment, 1 though an edema of the lungs 
caused by inhaling smoke from a blast in a tunnel, and an ul- 
cerated sore throat resulting from the inhalation of acid fumes 
while repairing an acid tank, were held to be injuries entitling 
to compensation ; so also of sunstroke ; and of the freezing of 
a workman's feet while employed in an exposed place ; and of 
the aggravation of a chronic appendicitis by a strain or blow, 
leading to disability which had not existed prior to the accident 
causing the injury ; and in a case of disability caused by a sprain 
accompanied by a rupture of the synovial sac surrounding the 
ligaments of the wrist, induced by repeated operations under 
conditions causing unusual effort in the performance of work, 
it was held that "within the language of the statute, an em- 
ployee may be injured in the course of his employment without 
having suffered a definite accident." 2 An error of judgment 
or the display of ignorance in procuring or following medical 
advice is not a bar to the receipt of compensation. 

1 28 Opinions of the Attorney-General, p. 254. 

2 27 Opinions of the Attorney-General, p. 346. 



WORKMEN'S COMPENSATION LAWS 191 

Presumptions are in favor of the claimant, as where injury 
occurred in the performance of work under conditions not 
usually attended by untoward circumstances, but which in the 
particular case involved injury. A person with a preexisting 
weakness suffering injury from an accident that would not 
presumably injuriously affect a sound man is entitled to com- 
pensation notwithstanding his predisposition, if the accident 
was the actual proximate cause of the disability. This extends 
to the case of a workman who is in a place of danger in the 
course of his employment, and is affected by epilepsy, to which 
he is subject, and is injured, the disease being nothing more than 
a remote cause ; while the position of hazard that makes the 
fall dangerous, as from a height, or into a fire, is a condition of 
employment, and the injury is therefore one that was entitled 
to compensation. An employee engaged as laborer does not 
lose his status because of the fact that at the moment of the 
accident causing his injury he is employed at other than strictly 
laborer's work ; while a messenger or other employee may be 
detailed to work of such nature as to bring him within the scope 
of the act. Employees of contractors of the government are 
not employees of the United States. 1 

The course of employment includes going upon ways or con- 
veyances furnished or maintained for the purpose of going to 
and from work. One injured by a blast at the place where he 
was due to begin work within a few minutes was present in the 
scope of his employment, as was one who was on his way home 
by the usual route at the close of work and was injured at an- 
other place than that of his own labor ; so also an employee in- 
jured by the negligent act of another, while the former was 

1 Following United States v. Driscoll, 96 U.S. 421. 



192 LAW OF THE EMPLOYMENT OF LABOR 

performing the required duty of " ringing in" at the time clock, 
was entitled to compensation. 

The payments being compensatory in their nature are not to 
be regarded as gratuities; if therefore an injured employee 
submits a claim but dies before it is passed upon, the compensa- 
tion payable for the term of his disability may be paid to his 
personal representatives, since it is a right which survives him, 
and does not die with him as does a right to a gratuity. 1 Sur- 
viving beneficiaries must, of course, submit a separate claim for 
the period subsequent to the death, terminating with the year 
for which payments are provided. 

The above construction follows in some measure the inter- 
pretation put upon the British compensation act, where ap- 
propriate; and while the compensation afforded is often en- 
tirely inadequate, as in cases of maiming, permanent disability, 
and loss of life, by a liberal regard for the fair intendment of 
the act, a very considerable measure of relief is furnished to 
a class of employees who were otherwise practically without 
redress. 

The idea of compensation had already received recognition 
in the case of members of crews of life-saving or lifeboat stations, 
who, if disabled by wound or injury received or disease con- 
tracted in the line of duty, may receive full pay during one year, 
and, on approval by the Secretary of the Treasury, during a 
part or all of a second year ; 2 also in the case of railway mail 
clerks injured while on duty, who continue to receive pay during 
one year if the disability lasts so long. The personal represen- 
tatives of railway mail clerks killed while on duty, or dying 

1 XVI Decisions of the Comptroller of the Treasury. 477. 
* Act of May 4, 1882, 22 Stat. 57. 



WORKMEN'S COMPENSATION LAWS 193 

within one year thereafter as a result of injury received while 
on duty, receive the fixed sum of two thousand dollars. 1 

Section 100. State Statutes. — With the exception of the 
cooperative insurance law of Maryland (sec. 98), the state of 
Massachusetts was the first of the United States to enact leg- 
islation looking toward the substitution of compensatory pay- 
ments in lieu of actions for damages. 2 The law provides for a 
submission to the state board of conciliation and arbitration of 
such schemes or plans as may be proposed by employers as 
substitutes for the system of liability existing at common 
and statute law ; payments are to be based on a percentage of 
the average earnings of the employees. When any scheme is 
approved by the board, the employer may make contracts with 
his employees for his release from liability at law by the pay- 
ment of the proposed compensation. It is not permitted to an 
employer to make the employee's assent to such a scheme 
obligatory as a condition to securing employment. It is ob- 
vious, however, that the employer is not obliged to either accept 
or retain any employee; and that while the employer would 
not, under the circumstances, assign as a reason for the work- 
man's nonemployment his unwillingness to enter into the con- 
tract, it might in fact be the controlling reason, which the 
employer is not at all obliged to disclose. 3 

While this state was the first to arrange by statutory enact- 
ment for a scheme of compensation, the first laws embodying 
and enacting such a scheme were passed by the legislature of 

1 Act of May 12, 1910, 36 Stat. 363. Prior to this date the sum of $1000 had 
been paid ; see appropriation act, Act of April 21, 1902, 32 Stat. 115, and subse- 
quent appropriation acts. 

* Acts 1908, ch. 489. 

» Adair v. United States, 208 U.S. 161, 28 Sup. Ct. 277. 
o 



194 LAW OF THE EMPLOYMENT OF LABOR 

New York. 1 The first statute amends the former liability law 
of the state, chiefly by making any person exercising control or 
command a vice-principal as to those under his direction, and 
by making the employer liable for injuries to the employees of 
a contractor where injury results from conditions within the 
control of the original employer. Restrictions are also placed 
on the use of the defenses of assumption of risks and contribu- 
tory negligence. This statute then proceeds to enact a com- 
pensation scheme, the acceptance of which is optional with 
employers and employees, as an alternative to the rights and 
liabilities existing at common law or provided in the state 
liability law. 2 

*Acts 1910, chs. 352, 674. 

a The compensation scheme involves the payment of death claims in an 
amount equal to twelve hundred times the employee's daily earnings, where 
dependents survive, and proportionately reduced amounts if there are only par- 
tial dependents. If no dependents survive, medical and burial expenses in an 
amount not exceeding one hundred dollars are to be paid. In cases of nonfatal 
accidents resulting in total incapacity, one half the average weekly earnings are 
to be paid during disability not exceeding eight years. For partial incapacity 
the payment is to be equal to one half the difference between the earnings before 
and after the injury. Payments shall in no case exceed ten dollars per week, and 
medical examinations may be held from time to time at the employer's expense 
to determine the continuance and degree of disability. 

Employers and employees accepting the scheme are to signify the fact by 
signing and filing an instrument to that effect with the same formalities as if 
making a conveyance of real estate, the agreement to continue in force during the 
continuance of the employment contract unless canceled by sixty days' notice 
in writing by either party. The agreement relieves the employer from liability 
under common or statute law unless the injury was due to his failure to obey an 
order of the commissioner of labor as to provisions for safety or to his serious 
and willful misconduct. The bringing of a suit cuts off all claim to compensation 
under the plan, and no right accrues where the injury is due to the serious or 
willful misconduct of the person injured. Questions arising under the compensa- 
tion plan may be settled by agreement, by arbitration as provided by the code 
of civil procedure, or by an action at law. The action at law is to be in the form 



WORKMEN'S COMPENSATION LAWS 195 

The acceptance of the provisions of the second law was 
made obligatory where they applied. This statute involves 
a consideration of the power of the legislature to enact a 
law compulsorily shifting the burden of the risk of in- 
dustrial accident from the employee to the industry itself, 
and requiring fixed measures of relief or compensation 
for resultant injuries to be administered by the employer with- 
out reference to his personal fault or negligence. Where only 
an optional or elective provision exists, both parties being free 
to choose, it is a matter of agreement or contract and within the 
power of the parties, unless this exercise of their rights is shown 
to be contrary to public policy. A compulsory statute, how- 
ever, must show proper justification for its enactment as a 
matter of public welfare within the police power of the state. 
Prior decisions tending to support such a law exist. Thus it has 

of a suit on breach of contract, and the award, if in the claimant's favor, shall be 
a lump sum covering arrears and prospective payments. No assignment or 
attachment can affect weekly payments due under the plan, nor will a claim for 
an attorney's fee be enforceable unless the amount is approved in writing by a 
justice of the supreme court or by the justice of the court in which the case was 
tried. The payments rank as preferred claims against an employer's assets, the 
same as unpaid wages for personal services. Railroads are exempted from the 
operation of the compensation statute, and no injury causing disability of less 
than two weeks' duration is to be considered. 

The second act (ch. 674) provided a compulsory compensation scheme for 
designated dangerous employments, i.e., the construction or demolition of bridges 
or buildings where iron or steel framework is used, and the operation of elevators, 
derricks, or hoists for the conveyance of materials in connection therewith ; 
work on scaffolds twenty or more feet in height in the construction, alteration, 
repair or painting of buildings or bridges ; work involving danger from elec- 
trically charged wires ; work involving the use of explosives as an instrumentality 
of the industry; railroad employments, including maintenance of way; the 
construction of tunnels and subways ; and all work carried on under compressed 
air. The details as to compensation and administration are practically the same 
as in the case of the elective statute. 



196 LAW OF THE EMPLOYMENT OF LABOR 

been held that legal liability may be charged even in the ab- 
sence of fault, thus practically making the manager of a busi- 
ness an insurer of the safety of his customers, as in the case 
of a railroad company and persons transported by it. 1 Stat- 
utes are constitutional that modify or abrogate the defenses 
of fellow-service, assumed risks, and contributory negligence. 2 
Such legislation may go so far as to give the employee a status 
that is briefly described in some statutes as being the same as 
if he had not been an employee. 3 

The validity of legislation adapted to the particular character 
of the undertaking has already been noted, 4 and the hazardous 
nature of an employment is clearly recognized as warranting the 
regulation of its working conditions by a measure of legislative 
interference with the common law freedom of contract of the 
employer and employee. 5 It is clear, however, that a compen- 
sation law cannot be said to address itself in any direct manner 
to the question of the physical conditions of employment, and 
that any indirect effect, as by stimulating employers to care in 
order to lighten the probable burdens of a compensation pro- 
vision, could not bring the law within the class of safety regu- 
lations. 

The first case to come before the courts under the statute in 



1 Chicago, R. I. & P. R. Co. v. Zernecke, 59 Nebr. 689, 82 N.W. 26 ; same case, 
183 U.S. 582, 22 Sup. Ct. 229 ; Chicago, B. & Q. R. Co. v. Wolfe, 187 U.S. 638, 23 
Sup. Ct. 847. 

s Howards Illinois C. R. Co., 207 U.S. 463, 28 Sup. Ct. 141 (dissenting opin- 
ion, and cases cited) ; El Paso & N. E. R. Co. v. Gutierrez, 215 U.S. 87, 30 Sup. 
Ct. 21 ; Ives t>. South Buffalo R. Co., 201 N.Y. 271, 94 N.E. 431. 

* Mass., Acts 1909, ch. 514, sec. 127 ; Me., Acts 1909, ch. 258. 

« Sec. 90. 

6 Missouri P. R. Co. v. Mackey, 127 U.S. 205, 8 Sup. Ct. 1161 ; Tullis v. R. Co., 
175 U.S. 348, 20 Sup. Ct. 136 ; Holden v. Hardy, 169 U.S. 366, 18 Sup. Ct. 383. 



WORKMEN'S COMPENSATION LAWS 197 

question (the law providing compulsory compensation in cer- 
tain dangerous employments), was one of injury to a railroad 
employee without fault charged to either the injured employee 
or the employer, but merely as a necessary risk of the employ- 
ment. In the trial and appellate courts the act was held to be 
constitutional, the court stating that the legislature thereby 
undertook merely to shift the burden of the trade risk from the 
employee to the employer, which was said to be within its 
power. 1 On appeal to the court of appeals of the state, how- 
ever, the law was declared unconstitutional. The cogency of 
the economic and equitable reasons was recognized, but it was 
held that under existing restrictions on legislative action, it was 
impossible constitutionally to enforce a law of this nature, 
charging the employer with liability for accidents resulting from 
no fault of his own, thus taking his property without due pro- 
cess of law. 2 

Laws following the principles of the elective law of New York 
are found in other states. 3 For employers who do not accept 
the compensation act, but stand on the principle of liability, the 
act may provide that the defenses of fellow-service and assumed 

1 Ives v. South Buffalo R. Co., 124 N.Y. Supp. 920. 

1 Ives v. South Buffalo R. Co., 201 N.Y. 271, 94 N.E. 431. It is of interest to 
note in this connection that the court, while recognizing the force of the economic 
argument in favor of the compensation law, yet concluding that it could not 
validate the act under consideration, was traversing the same ground over which 
the courts have frequently gone seeking reasons to justify the exception to the 
rule of respondeat superior that is presented in the fellow-servant doctrine, 
though these courts reached the conclusion that the economic argument was 
adequate. See sec. 78 ; also opinion Mass. Sup. Ct., July 24, 1911, on in- 
surance bill. 

3 Cal., Act of April 8, 1911 ; 111., Act of June, 10, 1911 ; Kans., Act of March 13, 
1911 ; N.H., Act of April 15, 1911 ; N.J., Act of April 4, 1911 ; Wis., Act of 
May 3, 1911. 



198 LAW OF THE EMPLOYMENT OF LABOR 

risks shall be abrogated, and a rule of comparative negligence 
enacted; while in New Jersey the defense of contributory 
negligence is done away with entirely. Instead of making the 
loss of these defenses conditional, they may be restricted or 
abrogated absolutely, by amendment of the liability law, as in 
California, New Hampshire, and New York. 

The State, of Nevada has a compulsory compensation law, 1 
applicable to a rather comprehensive list of employments desig- 
nated as " especially dangerous." The employee has his choice 
of a claim under the compensation act or a suit for damages, 
the employer being deprived of the defenses of fellow-service 
and assumption of risks, while that of contributory negligence 
is restricted. Contracts exempting the employer from his obli- 
gations under the act are prohibited, but claims may be settled 
by compromise after the injury has been received. 

1 Act approved March 24, 1911. 



CHAPTER IX 

NEGLIGENCE OF EMPLOYEES 

Section 101. The Liability of Employees for their Negligent 
Acts. — An employee is liable to his employer for damages 
caused by his negligence or misconduct in the performance of 
his work, 1 a provision which is embodied in the Field Codes. 2 
The burden of proving that the damage was caused by such 
negligence or misconduct is on the employer, 3 and if the em- 
ployer's failure to furnish suitable tools, materials, or appliances 
concurred with the employee's lack of care or skill in causing the 
damage, no recovery can be had. 4 

It has been disputed whether an employee can recover dam- 
ages against a fellow-servant for negligence causing injury, 5 
but the better doctrine is to the effect that he can ; 6 and clearly, 
no sufficient reason appears why a man should be relieved from 
liability for his misconduct merely because its victim is one who 
is in the same employment with himself, such liability resting 

1 Mobile, etc., R. Co. v. Clanton, 59 Ala. 392, 31 Am. Rep. 15 ; Hillyard v. 
Crabtree, 11 Tex. 264, 62 Am. Dec. 475. 

» Cal., Civ. Code, sec. 1990. 

s Newton v. Pope, 1 Cowen 109 (N.Y.). 

< Wilder v. Stanley, 49 Vt. 105. 

1 Albro v. Jaquith, 70 Mass. 99, 64 Am. Dec. 56 ; Stevens v. R. Co., 1 Ohio 
Dec. 335. 

6 Hinds v. Overacker, 66 Ind. 547, 32 Am. Rep. 114 ; Hare v. Mclntire, 82 Me. 
740, 19 Atl. 453 ; Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437 (overruling 
the Albro case, supra) ; Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237 ; 
Brower v. N. P. R. Co., 109 Minn. 385, 124 N.W. 10. 

199 



200 LAW OF THE EMPLOYMENT OP LABOR 

on the common law obligation to so conduct one's self as not to 
injure another, and not on any contract relation. 

A number of states have laws providing for penal proceedings 
against employees who are negligent in the discharge of their 
duties to the injury of third persons. The common law provides 
for such liability generally, but the statutes in question fix 
stated penalties for certain classes of offenses. 1 These relate 
most frequently to employees of common carriers, both by land 
and water, often with varying penalties for negligence and gross 
negligence, 2 or for negligence endangering life and for that caus- 
ing actual loss of life. 3 Willfully damaging live stock or other 
property, or unnecessarily frightening teams is also made a 
ground for punishment. 4 In some jurisdictions, similar laws 
exist relating to operators of steam boilers or other machinery, 5 
or even to persons in charge of animals. 6 

The question of requiring bonds from employees as a safe- 
guard against the results of their negligence is taken up by a law 
of Massachusetts, 7 by which common carriers are forbidden to 
require of their employees any bond or other security against the 
consequences of the employee's negligence except a bond to ac- 
count for money or other property. A statute of New Mexico 
looks only to the prohibition of the requirement of bonds by 
foreign bonding companies, and forbids employers to charge a fee 

1 Ga., Pen. Code, sec. 115; Kans., G.S., sees. 2007, 2008; N.Y. Con. L., ch. 
40, sees. 1052, 1891, 1892 ; Mass., Acts 1906, ch. 463, Pt. II, sees. 243, 244 ; N. 
Dak., R.C., sees. 8821, 8822, 8993, 8994. 

* Mass., N.Y., N. Dak. 

* Ala., Code, sees. 7666, 7807, 7808, 7810 ; Vt., P.S., sec. 4508. 

* 111., R.S., ch. 38, sec. 191. 

•Ariz., Pen. Code, sec. 308; Cal., Pen. Code, sec. 368; Minn., R.L., sees. 
4886, 4889 ; N.Y., Con. L., ch. 40, sec. 1893. 

* Minn., R.L., sec. 4886. T Acts 1909, ch. 514, sec. 24. 



NEGLIGENCE OF EMPLOYEES 201 

for bonds against loss from the acts of an employee against such 
employee's wages unless the company writing the guarantee 
maintains an office in the territory. 1 

A specific form of negligence adverted to by the laws of a 
majority of the United States is the intoxication of employees. 2 
These laws relate in most instances to the employees of common 
carriers, and have regard to the welfare and safety of the public 
as well as of fellow-servants. A law prohibiting intoxicated 
persons to enter or be in any mine, smelter, machine shop, or 
sawmill 3 doubtless has regard less directly for the interests of the 
public. In a number of states an employer who is a common 
carrier is subject to a fine if he hires or retains in his service per- 
sons of intemperate habits. 4 The statute may also declare him 
liable in damages by reason of any injury caused by such em- 
ployment, 5 which is, however but a statement of the common 
law controlling in such cases. The employee may also be de- 
clared liable for all damages incurred or produced by reason of 
his intoxication during employment ; 6 or, if he causes injury 
to person or property by reason of such intoxication, he may be 
fined or imprisoned. 7 

Section 102. Liability of the Employer to Third Persons. — 
The doctrine of respondeat superior, i.e., that one is responsible 
for the acts of his agents, operates to give third persons a right 
of action against the employer as principal, as well as against 

» C.L., sees. 2141, 2142. 

* Ariz., Pen. Code, sec. 356; Conn., Acts 1907, ch. 267; Ind., Acts 1907, ch. 
272, sec. 3 ; Miss., Code, sec. 1350. 

» Wyo., Acts 1909, ch. 32. 

4 Cal., Polit. Code, sees. 2932, 2933 ; Mich., C.L., sec. 6284 ; Ohio, Gen. 
Code, sec. 9005. 

e Vt., P.S., sec, 4506. « Mich., C.L., sec. 6285. 

7 Vt„ P.S., sec. 4507 ; Conn., Acts 1907, ch. 267 ; Ind., Acts 1907, ch. 272. 



202 LAW OF THE EMPLOYMENT OF LABOR 

the negligent actor, where an injury is received on account of 
the negligence of an employee. 1 To give ground for the action 
against the employer the relation of employer and employee 
must exist at the time of the act giving rise to the claim, though 
the acts of one rendering service, however trivial, or for however 
short a time, and even if without being requested so to do by 
the person served, if done with his knowledge, or with his as- 
sent, express or implied, will make him liable in damages to 
third persons injured by such acts. 2 The degree of liability is, of 
course, only such as the employer would have incurred if he had 
done the act himself ; and since the doctrine is an exception to 
the broader rule that every one is answerable for his own acts, 
its limits are in fact carefully guarded, being in general restricted 
to specifically authorized acts, 3 or those done in line of duty and 
for the benefit of the employer, since beyond the scope of his 
employment the employee has no more claim upon his employer 
than has any other person, 4 but within this scope the employer 
is liable even though the act is willful and wanton. 5 

The liability is the consequence of the negligent character of 
the act causing it, and it is no defense to the employer that he 
was careful in choosing his employees, or had no notice of their 
incompetency. 6 If the act was done in the course of employ- 
ment and in the furtherance of the employer's business, it is no 

1 Farwell v. Boston W. R. Co., 4 Mete. 49 (Mass.) ; Warax v. Cincinnati, etc., 
R. Co., 72 Fed. 637 ; Chesapeake & O. R. Co. v. Dixon, 179 U.S. 131, 21 Sup. Ct. 
67. J Hill v. Morey, 26 Vt. 178 ; Althorf v. Wolfe, 22 N.Y. 355. 

3 Lynch v. Metropolitan E. R. Co., 90 N.Y. 77, 43 Am. Rep. 141. 

* Marier v. R. Co., 31 Minn. 351, 17 N.W. 952 ; Phelan v. Stiles, 43 Conn. 426 ; 
Medlin Milling Co. v. Boutwell (Tex.), 133 S.W. 1042. 

* Jones v. Seaboard Air Line R. Co., 150 N.C. 473, 64 S.E. 205; Wallace v. 
John A. Casey Co., 116 N.Y.S. 394. 

* Minot v. Snavely, 172 Fed. 212 (C.C.A.). 



NEGLIGENCE OF EMPLOYEES 203 

defense that the act itself was specifically prohibited. 1 Thus 
where a salesman loaded a gun in a store at the request of a 
customer, though protesting that it was against his employer's 
instructions, a resultant injury to a bystander was held to be 
chargeable to the employer because of the purpose of the act, 
which was in no sense to serve the negligent employee, but only 
to effect a sale for his employer. 2 The same rule has been en- 
forced where the injurious act was obviously unauthorized, as 
the forcible taking of an article of property to secure the pay- 
ment of fare, 3 or the use of undue violence in carrying out an 
order, 4 such acts having been committed in the exercise of the 
general power intrusted to the employee by the employer. 

An employer may ratify a wrongful act of his em- 
ployee, as by accepting benefits procured by the acts of which 
the wrong was an incident, and thus become liable therefor to 
the injured person. 5 The mere fact of the retention of an em- 
ployee after the commission of the wrongful act does not amount 
to a ratification thereof, 6 though it is said that to retain and 
promote an employee with a knowledge of his tortious acts is 
some evidence of such ratification. 7 It has been held that, 
where the injury is caused by acts in the nature of slander or 
libel, it is not sufficient to show that the servant was at the time 

» Western Real Estate Trustees v. Hughes, 172 Fed. 206 (CCA.) ; Philadel- 
phia & R. R. Co. v. Derby, 14 How. (55 U.S.) 468. 

2 Garretzen v. Duenckel, 50 Mo. 104, 11 Am. Rep. 405. 

3 Ramsden v. R. Co., 104 Mass. 117, 6 Am. Rep. 120. 

« Jeffersonville R. Co. v. Rogers, 38 Ind. 116, 10 Am. Rep. 103; Steamboat 
Co. v. Brockett, 121 U.S. 637, 7 Sup. Ct. 1039; Tillarr. Reynolds (Ark.), 131 
S.W. 969. 

6 Simon v. Bloomingdale, 81 N.Y. Supp. 499, 39 Misc. 847; Dempsey v. 
Chambers, 154 Mass. 330, 28 N.E. 279. 

6 International, etc., R. Co. v. McDonald, 75 Texas 41, 12 S.W. 860. 

7 Bass v. Chicago, etc., R. Co., 42 Wis. 654, 24 Am. Rep. 437. 



204 LAW OF THE EMPLOYMENT OF LABOR 

in the service of his employer or acting within the scope of his 
employment; but direct authority to speak the actionable 
words, or their subsequent approval and ratification must also 
be shown. 1 

Both master and servant may be held responsible for injuries, 
either to strangers 2 or to other employees ; 3 and a nonresident 
corporation cannot procure a separation of a joint action so as 
to avail itself of the right of removal of the case from a state to a 
federal court. 4 The law of one state directs that in actions for 
damages against an employer, when the injury is the result of 
the negligence of a co-employee of the person injured, such 
negligent employee shall be named in the verdict. 5 If the li- 
ability of the employer is based solely on the rule of respondeat 
superior, and not any participation by him in the negligent or 
wrongful act, it has been held that the employer's liability in 
such a case is separate and distinct from that of the employee, 
and not joint, and that therefore a nonresident employer's case 
might be transferred to a federal court ; 6 but the contrary 
rule is fixed as the practice of the Supreme Court. 7 Where an 
employer has been subjected to the payment of damages on 
account of the wrongful act of his employee, in a case in which he 
is not jointly liable, he may recover the sum paid in an action 
against the employee, 8 though it must appear clearly that the 
latter was guilty of negligence, to support such a recovery. 9 

1 Duquesne Distributing Co. v. Greenbaum, 135 Ky. 182, 121 S.W. 1026. 

8 Hewett v. Swift, 85 Mass. 420. » Fort v. Whipple, 11 Hun. 586. 

♦Chesapeake & O. R. Co. v. Dixon, 179 U.S. 131, 21 Sup. Ct. 67; Alabama 
G. S. R. Co. v. Thompson, 200 U.S. 206, 26 Sup. Ct. 161. 

B Minn., R.L., sec. 4179. « Warax v. Cincinnati, etc., R. Co., 72 Fed. 637. 

7 Chesapeake & O. R. Co. v. Dixon, supra; Alabama G. S. R. Co. v. Thomp- 
son, supra. 8 Smith v. Foran, 43 Conn. 244, 21 Am. Rep. 647. 

• Brannan v. Hoel, 15 La. Ann. 308. 



CHAPTER X 



SUNDRY STATUTES 



Section 103. Liability of Employers for Taxes of Employees. 
— An incident of the relation of employer and employee that is 
purely statutory is a provision of the laws of a few states that 
makes employers liable for taxes levied on their employees, 1 
usually poll and road taxes. By these statutes the employer 
may be required to pay such taxes and recoup himself from the 
wages owing to or earned by them. The Pennsylvania statute 2 
refers to alien employees only, but covers all taxes payable by 
them. Falling short of such requirements, but looking toward 
the same end are laws directing employers to furnish the names 
of employees to assessors, road overseers, etc. 3 Such laws go 
to quite an extreme in the matter of charging employers with the 
duties devolving on the public officers of the state, and are of at 
least doubtful validity, burdening employers with the discharge 
of a quasi public function from which other persons in like situa- 
tion in every respect except that they are not employers are 
free ; 4 nor does the duty fall equally on employers, especially 

1 Cal., Polit.'Code, sec. 2671; Ga., Polit. Code, sec. 549; Idaho, R.C., sec. 
908 ; La., Acts 1902, No. 213 ; N. Mex., Acts 1907, ch. 96 ; Wash., Acts 1903, 
ch. 119 ; Wyo., Acts 1905, ch. 52. 

* Acts 1897, No. 108. 

» Ark. Dig., sec. 5355 ; Cal. Pen. Code, sec. 434 ; Colo., A.C., sec. 3957 ; N.C. 
Rev., sec. 5201. 

* County Com'rs v. Aspen Mining Co., 3 Colo. App. 223, 32 Pac. 717. 

205 



206 LAW OF THE EMPLOYMENT OP LABOR 

in the case of the Pennsylvania statute, and it seems probable 
that the law of that state would fall under the same condemna- 
tion as did the statute taxing employers of alien labor. (See 
sec. 56.) 

In case of a judgment for taxes rendered against a delinquent 
workman, the obligation devolving on the employer is in the 
nature of a garnishment, and he is liable for the payment of 
such taxes if and only if he is indebted to the employee at the 
time the notice is served, or becomes indebted thereafter. 1 

Section 104. Profit Sharing by Employees. — Two states 
have laws containing special provisions authorizing corpora- 
tions to arrange for admitting employees to an interest in the 
profits of the business. In one of these 2 the method is simply 
a grant of power to the board of directors to distribute to the 
employees such portion of the profits as it may deem just and 
proper ; in the other instance, 3 provision is made for the issue 
of special stock to employees, such stock to be held only by 
them. The value of such stock is limited, and the proportion 
to the total value of the capital restricted; the payment of 
dividends thereon is also regulated. These laws are of but little 
interest, since they are not essential to the practices indicated, 
which are much more common than is the legislation. 

Section 105. Pensions for Employees. — The law of Pennsyl- 
vania regulating corporations contains a section 4 which declares 
that corporations for profit may grant allowances or pensions 
to employees who have become old or infirm during service. 
Like the laws mentioned in the foregoing section, this law is of 

1 Kootenai County v. Hope Lumber Co., 13 Idaho 262, 89 Pac. 1054. 

* Conn., G.S., sec. 3342. 

3 Mass., R.L., ch. 110, sees. 37-39. * B. P. Dig., p. 424, sec. 106. 



SUNDRY STATUTES 207 

no particular value, the practice being comparatively wide- 
spread and entirely independent of statutory regulations. 

Section 106. Cooperative Associations. — A number of states 
have special laws providing for the formation of cooperative 
associations for profit. 1 So far as productive associations are 
concerned, it is the intention of these laws to provide for the 
cooperation in industrial undertakings of groups of persons as- 
sociated in corporate form to manage a business in which the 
labor shall be furnished largely or exclusively by the members 
themselves. Provision is made against the concentration of 
stock or of power, either by declaring that members shall hold 
but one share each of the stock, or by limiting the value of the 
stock one member may hold ; voting power is also restricted. 

Section 107. Workmen's Trains. — One state has a statute re- 
quiring every railroad having a terminus in its principal city to 
operate not less than two workingmen's trains each way daily. 2 
The hours of arrival and departure and the rates of fare are 
fixed by the statute. The number of trains may be increased 
by the board of railroad commissioners on petition. 

The object of securing reduced rates of transportation for 
workmen at certain hours of the day may also be gained by 
provisions in the articles of incorporation of street railways, or 
by city ordinances; and where the ordinance requires such 
service within the city limits, the extension of the bounds of the 
city will operate to extend the application of the ordinance, 
where the same charter is effective. 3 

'Conn., G.S., sees. 3992-4001; 111., R.S., eh. 32, sees. 103-127; Kans., 
G.S., sees. 1454-1456 ; Mass., R.L., eh. 110, sees. 7, 69, 70 ; N.J., G.S., pp. 894- 
896. 

2 Mass., Acts 1906, eh. 463, Pt. II, sec. 188. 

a People v. Detroit United Railway, 162 Mich. 460, 125 N.W. 700. 



208 LAW OF THE EMPLOYMENT OF LABOR 

Section 108. Employment Offices. — Agencies having for 
their object the placing of applicants for employment or the 
furnishing of employees to persons seeking workmen are regu- 
lated by statute in many states, the large amount of fraud and 
of abuse of confidence being held to justify such action. The 
state itself has undertaken to render this service in a number of 
jurisdictions, appropriating sums of money for the maintenance 
of bureaus of information and registration for both workmen 
and employers. 1 These offices are usually under the direction 
and management of the state labor commissioner, and are 
recognized as a proper form of state activity. The service is 
without charge to either party, and must be uniformly rendered 
without discrimination between persons engaged in or seeking 
legitimate employment. Thus a law forbidding the furnishing 
of lists of applicants for employment to employers whose work- 
men are on strike 2 was declared unconstitutional as unlawfully 
discriminating between employers having employees who had 
gone on strike, possibly without justifiable cause, and other 
employers ; also between workmen applying for situations with 
employers whose men are not on strike and workmen whose 
applications were not so restricted. 3 In other words, it was an 
attempt to enact a law not affording the equal protection to the 
citizens of the state that is required by the fourteenth amend- 
ment. 

The regulations affecting privately managed employment 
agencies may require merely a registry of the agency and the 

1 Conn., G.S., sees. 4608, 4609, Acts 1903, eh. 33 ; 111., R.S., eh. 48, sees. 53 
to 60 ; Mich., Acts 1907, No. 281 ; Ohio, Acts 1904, p. 101, etc. 

2 111., Acts 1899, p. 268. 

3 Matthews v. People, 202 111. 389, 67 N.E. 28. 



SUNDRY STATUTES 209 

payment of a tax or license fee ; 1 or they may contain the added 
requirement of good character of the applicant for license ; 2 or 
of a bond conditioned that the applicant shall conduct his agency 
properly and pay damages resulting from misconduct. 3 They 
may, on the other hand, prescribe minutely the conduct of the 
business, 4 as by fixing or limiting the amount of the fee to be 
charged, or prohibiting the making of any charge in advance of 
the furnishing of information or assistance to the applicant, or 
forbidding the division of the fees with employer. Failure to 
secure or retain a position by the assistance of the agency may 
be made grounds for a demand for a return of a part or all of 
the fee paid. The sending of applicants for labor to places of 
an immoral character is frequently prohibited in laws of this 
class, and the location of the office of the agent in or in com- 
munication with any place in which intoxicants are sold, or in 
connection with any restaurant or lodging house may be for- 
bidden. The agent may be required to assure himself beyond 
a reasonable doubt as to the correctness of his statements, and 
the making of false statements be punished as a misdemeanor. 
Laws of this nature are clearly restrictive of the citizen's 
right to carry on a lawful business, and as such their constitu- 
tionality has been challenged. They have been upheld by the 
courts, however, on the ground that they are within the police 
power of the state, exercised in behalf of the general welfare, 
and specifically to prevent fraud and immorality. "The leg- 

1 Tenn., Acts 1907, ch. 541, sec. 4; Ky., Acts 1904, ch. 33 ; Nev., C.L., sec. 
1187. 2 Va., Code App., sees. 128, 129. 

3 La., Acts 1894, No. 58 ; Idaho, Code, sees. 658, 659. 

* D.C. (U.S.), 34 Stat. 304, 848, 35 Stat. 641 ; Cal., Sims' Penal Code, p. 582 ; 
111., R.S., ch. 48, sees. 61, 62; N.Y., Con. L., ch. 20, sees. 170-189; Pa., Acts 
1907, No. 90 ; N. J. Acts 1907, ch. 230 ; Ohio, Gen. Code, sees. 886-896. 



210 LAW OF THE EMPLOYMENT OF LABOR 

islature has the right to take notice of the fact that such agencies 
are places where emigrants and ignorant people frequently 
resort to obtain employment and to procure information/ ' 1 
and the evils of imposition and extortion that are known to have 
been practiced by private agencies warrant their regulation by 
statute. 2 A provision limiting the amount of charges was held 
unconstitutional in a California case, 3 the language used by the 
court being such as to suggest its disapproval of the entire law. 
The better opinion is, however, clearly in their favor. 

A few states require emigrant agents, i.e., agents undertaking 
to procure employees for labor outside the state of residence, to 
pay a tax for the privilege of transacting such business, not so 
much, apparently, by way of regulation as for the sake of dis- 
couraging it entirely. Such at least would seem to be a natural 
inference from a tax rate of five hundred dollars for each county 
in which the business is carried on, 4 or even of one hundred 
dollars ; 5 while a rate of one thousand dollars per county 6 
could hardly receive any other interpretation. No license is 
necessary where the hiring is done by the employer himself or 
by his agent solely for him. 7 The validity of this class of 
laws, as taxing laws, was upheld in a case arising under the 
tax law of Georgia of 1898, which fixed the rate at five hundred 
dollars for each county in which the agent wished to operate. 
The contentions that the act restricted the right of a citizen to 

1 People ex rel Armstrong v. Warden, 183 N.Y. 223, 76 N.E. 11. 
'Price v. People, 193 111. 114, 61 N.E. 844; State v. Napier, 63 S.C. 60, 41 
S.E. 13. 

3 Ex parte Dickey, 144 Cal. 234, 77 Pac. 924. 

* Fla., G.S., sec. 476 ; Ga., Acts 1907, p. 25. 

« N.C., Revisal, sec. 5108. 6 S.C, Acts 1907, ch. 259. 

> Watts v. Commonwealth, 106 Va. 851, 56 S.E. 223. 



SUNDRY STATUTES 211 

move from one state to another, impaired the natural right 
to labor, and was class legislation without a reasonable basis, 
were all disallowed by the Supreme Court ; 1 nor would this 
court impute prohibitive intent to the law. The courts of 
states having laws of this class follow this decision, 2 which 
itself was in affirmation of a case decided by the supreme court 
of Georgia. 3 

In this connection may be mentioned statutes of a few states 
forbidding superintendents, foremen, and others who employ 
and discharge workmen, to ask for or receive fees or gratuities 
for giving employment or continuing employees in service. 4 

Section 109. Bureaus of Labor. — Offices exist in most of the 
United States as a part of the administrative force of the state, 
whose duty it is to collect industrial statistics, investigate 
conditions of employment, inspect factories and other work 
places, administer and enforce the laws enacted for the protec- 
tion of labor, and seek to improve the condition of manual 
laborers in general. The heads of such bureaus or offices are 
usually known as commissioners, and are sometimes appointed 
by the governor and sometimes elected by popular vote. The 
work of factory inspection, mine inspection, the enforcement of 
child and woman labor laws, the mediation and conciliation of 
labor disputes, and the conduct of free public employment offices 
are some of the administrative duties with which the com- 
missioners of labor may be charged in the various states. In the 

1 Williams v. Fears, 179 U.S. 270, 21 Sup. Ct. 128. 

J State v. Napier, supra; State v. Roberson, 136 N.C. 587, 48 S.E. 595. 

3 Williams v. Fears, 110 Ga. 584, 35 S.E. 699. 

4 Conn., G.S., sec. 4698 ; Fla., G.S., sec. 3743 (employment of longshoremen) ; 
Mont., Acts 1907, ch. 52 ; Nev., Acts 1909, ch. 25 ; Pa., B. Dig., p. 457, sec. 85 ; 
Utah, Acts 1909, ch. 52. 



212 LAW OF THE EMPLOYMENT OF LABOR 

carrying out of this work they may be required to prosecute 
employers and proprietors who disregard the statutes or the 
orders of the commissioners and their inspecting force; they 
may also be required to defend in actions brought by persons 
who feel themselves aggrieved by such statutes or orders. It is 
only in this indirect connection therefore that bureaus of labor 
call for mention here, the laws which they enforce having been 
already noted under their respective heads. 

The National Bureau of Labor is charged with the adminis- 
tration of no laws, its functions being investigatory only; the 
single exception to this rule lies in the fact that the administra- 
tion of the federal compensation act (see sec. 99) is delegated 
in large part to this bureau by the head of the Department of 
Commerce and Labor, to whom the statute is by its terms com- 
mitted for enforcement. The Commissioner of Labor also acts 
with a member of the Interstate Commerce Commission or of 
the Court of Commerce designated by the President, in efforts to 
mediate in labor disputes affecting interstate common carriers. 
(See sec. 128.) 



CHAPTER XI 

TRADE AND LABOR ASSOCIATIONS 

Section 110. Nature. — Associations of workingmen, whether 
members of single trades or of wider industrial groups, are 
the result of a purpose to procure for their members benefits 
that are conceived to be better obtainable by concerted action 
than by individuals acting singly. Such associations operate 
by way of agreement, each member giving over in part his own 
freedom of action to the will and choice of the organization in 
exchange for the benefits and protection proposed to be derived 
from his membership therein. To the extent of the scope of such 
agreements they operate as a restraint on the free action of the 
individual in disposing of his own labor, and in a resultant de- 
gree, on the free course of employment. 

Efforts to better the conditions of employment, including the 
subjects of wages, hours of labor, shop rules, and the personnel 
of the working force, are uniformly held to be lawful by the 
courts of this country, and the fact of combination in nowise 
affects the fact of lawfulness, although the power of the asso- 
ciated members is far greater than the mere sum of the indivi- 
dual forces comprising the association, and though there is a 
measure of restraint on trade. 1 With the exception of a very 
few early and entirely repudiated cases, this has always been the 

1 Master Stevedores' Ass'n. v. Walsh, 2 Daly 1 (N.Y.) ; Carew v. Ruther- 
ford, 106 Mass. 1, 8 Am. Rep. 287 ; Union P. R. Co. v. Ruef, 120 Fed. 102 ; Na- 
tional Protective Ass'n. v. Cummings, 170 N.Y. 315, 63 N.E. 369 ; Arthur v. 
Oakes, 63 Fed. 320, 11 CCA. 209 ; Hopkins v. U.S., 171 U.S. 578, 19 Sup. Ct. 40. 

213 



214 LAW OF THE EMPLOYMENT OF LABOR 

rule in the United States, while in many states, and by federal 
enactment, the lawfulness of labor associations is declared by 
statute ; l special provisions may also be made for their incor- 
poration. 2 

This broad statement as to the legality of associations and 
agreements must be qualified as soon as the conduct of third 
persons is made the subject of regulation or attempted regu- 
lation, 3 since one man's rights end where another's begin, though 
at what point this line is to be drawn has been the subject of 
numerous divergent opinions ; 4 nor can a man lawfully bind 
himself irrevocably to a surrender of his own choice and will. 
In other words, the voluntary character of the association must 
be maintained, and excessive fines or forfeitures to compel the 
observance of membership agreements cannot be enforced at 
law, even against the party making them. 5 The preservation of 

» Cal., Acts 1903, ch. 289 ; Colo., A.S., sec. 1295 ; N.Y., Con. L., ch. 40, 
sec. 582 ; Pa., B. P. Dig., p. 484, sees. 72, 73. 

2 Iowa, Code, sees. 1642, 1643 ; La., R.L., sec. 677, Acts 1890, No. 50 ; Mass., 
R.L., ch. 125, sees. 13-16 ; U.S., 30 Stat. 424, Comp. St., p. 3204. 

s U.S. v. Debs, 63 Fed. 436, 64 Fed. 724, 65 Fed. 210 ; In re Debs, 158 U.S. 564, 
15 Sup. Ct. 900 ; Loewe v. Lawlor, 208 U.S. 274, 28 Sup. Ct. 301 ; Pickett v. 
Walsh, 192 Mass. 572, 78 N.E. 753. 

4 The general principle seems to be well expressed in a case (Curran v. Galen, 
152 N.Y. 33, 46 N.E. 297), in which a nonunion employee was suing to recover 
damages for his discharge made in pursuance of an agreement that only union 
men should be employed. In this case the court said : " Public policy and the 
interests of society favor the utmost freedom in the citizen to pursue his lawful 
trade or calling, and if the purpose of an organization or combination of working- 
men be to hamper or restrict that freedom, and, through contracts or arrange- 
ments with employers, to coerce other workingmen to become members of the 
organization and to come under its rules and conditions, under the penalty of 
the loss of their positions and of deprivation of employment, then that purpose 
seems clearly unlawful, and militates against the spirit of our government and 
the nature of our institutions." 

* Martell v. White, 185 Mass. 255, 69 N.E. 1085 ; Boutwell v. Marr, 71 Vt. 1, 
42 Atl. 607; Willcut & Sons Co. v. Bricklayers' Ben. P.U., 200 Mass. 110, 85 
N.E. 897 ; Gatzow v. Buening, 106 Wis. 1, 81 N.W. 1003. 



TRADE AND LABOR ASSOCIATIONS 215 

a reasonable degree of liberty of action on the part of the mem- 
bers of organizations, other workmen, employers, and the public 
generally would appear to be the fundamental obligation which 
combinations of the sort under consideration should be required 
to meet. 1 The fact is not overlooked in this connection that 

1 In the case of Martell v. White, cited above, a voluntary association of gran- 
ite manufacturers had agreed to limit their business transactions to members of 
the association, under a penalty not to exceed five hundred dollars. Martell, 
a quarryman, who was not a member of the association, complained of loss of 
trade by reason of the agreement. Members of the association had in fact 
dealt with him until the enforcement of penalties caused them to cease. The trial 
court ruled that Martell had no ground of action, but on appeal it was held that 
though the end sought, i.e., the advancement of the business interests of the 
members, was not illegal, the fact that there was arbitrary and artificial inter- 
ference with the choice and acts of the members of the association, afforded suffi- 
cient grounds to support an action. The coercive system of fines, enforced by a 
tribunal not legally constituted, even though assented to in the original agree- 
ment, was held to result in illegal restraint, used as it was to enforce a right, not 
absolute, but conditional, and inconsistent with the conditions upon which the 
right rests. The case of Boutwell v. Marr was cited in this case, the circum- 
stances having been quite similar. In the Boutwell case the court said : "The 
law cannot be compelled, by any initial agreement of an associate member, to 
treat him as one having no choice but that of the majority, nor as a willing par- 
ticipant in whatever action may be taken. The voluntary acceptance of by- 
laws providing for the imposition of coercive fines does not make them legal and 
collectible, and the standing threat of their imposition may properly be classed 
with the ordinary threat of suits upon groundless claims." 

While the above cases are not those of combinations of workingmen, the prin- 
ciples of the Martell case were directly applied to a labor organization seeking 
to enforce a strike order by fines on members unwilling to leave their employ- 
ment (Willcutt & Sons Co. v. Bricklayers, etc., supra) ; to a case in which a labor 
union sought to enforce a fine against an employer of some of its members for not 
giving all his work to union workmen (Carew v. Rutherford, 106 Mass. 1, 8 Am. 
Rep. 287 : the fine was paid, but the court allowed Carew to recover it, as no 
one has the right, "either alone or in combination with others to disturb or 
annoy another either directly or indirectly, in his lawful business or occupation, 
or to threaten him with annoyance or injury, for the sake of compelling him to 
buy his peace." See also March v. Bricklayers' and Plasterers' Union, 79 Conn. 
7, 63 Atl. 291) ; and to a case in which a member was ordered to pay a fine for 



216 LAW OF THE EMPLOYMENT OF LABOR 

there is "an undoubted, and, from the practical standpoint, 
probably unassailable determination of the state to diminish 
the natural inequality of capital and labor, by prohibiting com- 
binations of capital and permitting combinations of labor." x 
But legislative expression of this intent does not authorize in- 
terference with the lawful business of employers, 2 or with the 
conduct of workmen who may not choose to become or remain 
members of labor organizations. 3 The right of action for dam- 
ages for interference with business or employment is therefore 
not precluded by statutes expressly legalizing labor combina- 
tions ; 4 and a law attempting to absolve from liability of this 
sort would doubtless be declared unconstitutional. So that 
though labor agreements are in some respects legalized in a 
sense in which capitalistic agreements are not, and assuredly in 
a sense quite in contrast to the status of such agreements under 
the prohibitive statutes of Great Britain in force at the begin- 

alleged violations of union rules (Brennan v. Hatters, 73 N.J.L. 729, 65 Atl. 
165 : Brennan was held not to be obliged to pay the fine or submit to the order 
of the union to give up his place for a year, since an original agreement to submit 
to such discipline, even if made, would be contrary to public policy and therefore 
void. See also Schneider v. Local Union No. 60, 116 La. 270, 40 So. 700 ; More v. 
Bennett, 140 111. 69, 29 N.E. 888). 

1 Tiedeman, State and Federal Control of Persons and Property, p. 423 ; 
per contra, Eddy on Combinations, sees. 894-897. 

8 Old Dominion S.S. Co. v. McKenna, 30 Fed. 48 ; Goldberg v. Stablemen's 
Union, 149 Cal. 429, 86 Pac. 806 ; Pierce v. Same, 156 Cal. 70, 103 Pac. 324 ; 
Farmers' L. & T. Co. v. N. P. R. Co., 60 Fed. 803 ; Arthur v. Oakes, 63 Fed. 310 ; 
Loewe v. Lawlor, 208 U.S. 274, 28 Sup. Ct. 301. 

« Curran v. Galen, 152 N.Y. 33, 46 N.E. 297 ; People v. Smith, 5 N.Y. Cr. 509 ; 
People v. Walsh, 6 N.Y. Cr. 292 ; Cumberland Glass Mfg. Co. v. Glass Bottle 
Blowers' Ass'n, 59 N.J. Eq. 49, 46 Atl. 208 ; Flaccus v. Smith, 199 Pa. 128, 48 
Atl. 894 ; Lucke v. Clothing Cutters, 77 Md. 396, 26 Atl. 505. 

* Frank v. Herold, 63 N.J. Eq. 443, 52 Atl. 152; Curran v. Galen, supra; 
Berry v. Donovan, 188 Mass. 353, 74 N.E. 603 ; Purvis v. United Brotherhood, 
214 Pa. St. 348, 63 Atl. 585. 



TRADE AND LABOR ASSOCIATIONS 217 

ning of the last century, they are yet necessarily controlled by 
the same general principles of law as are associations of capital, 1 
and more particularly associations of employers. 2 It is there- 
fore not permissible, in a study of trade or labor associations, 
to overlook any point as to the form, nature, purpose, or methods 
of the organization that would be pertinent in examining other 
combinations, though the effect of special statutes and of court 
decisions will necessarily receive attention. 

Section 111. Status. — The powers of an incorporated union 
are such as are given to it by its charter, and any member, as a 
party in interest to the acts and undertakings of the society, 
may call upon the courts to compel the observance by it of its 
charter provisions. 3 It may be enjoined, 4 and adjudged guilty 
of contempt for the violation of an injunction, and fined there- 
for, as any other corporation. 5 Such a body cannot, however, 
procure an injunction against a rival organization to prevent its 
own disruption by persuasion or other means calculated to 
cause its members to abandon the complaining organization; 
since its threatened dissolution gives it no grievance on its own 
account, and any interference with the rights or conduct of the 
members is a matter for their own consideration and action. 6 

The ordinary incidents of corporate existence attach where a 

1 Loewe v. Lawlor, supra; Waters-Pierce Oil Co. v. State, 48 Tex. Civ. App. 
162, 106 S.W. 918. 

« Atkins v. Fletcher Co., 65 N.J. Eq. 658, 55 Atl. 1074 ; Willner v. Silverman, 
109 Md. 341, 71 Atl. 962. 

8 Flaherty v. Longshoremen's Ben. Soc, 99 Me. 253, 59 Atl. 58. 

* Casey v. Typographical Union, 45 Fed. 135 ; Cceur d'Alene Consol. Min. 
Co. v. Miners' Union, 51 Fed. 260. 

6 Franklin Union v. People, 220 111. 355, 77 N.E. 176 ; Master Horseshoers' 
Ass'n v. Quinlivan, 83 App. Div. 459, 82 N.Y. Supp. 288. 

6 Silver State Council No. 1 v. Rhoades, 7 Colo. 211, 43 Pac. 451. 



218 LAW OF THE EMPLOYMENT OF LABOR 

labor organization procures its incorporation; these include 
the power to sue and be sued, and its legal and financial liability 
to the extent of its funds for its corporate acts and proceedings, 
being represented, as are other corporations, by properly desig- 
nated and authorized boards or officials. 1 What has been said 
as to exceptional treatment of labor organizations finds illustra- 
tion in this connection, since such bodies are permitted to in- 
corporate, while the laws governing corporate action generally 
are made inapplicable to labor unions by special provisos. 
Such exemptions occur in the enactments known as anti-trust 
laws, 2 in insurance laws, 3 and in the Federal statute providing 
for the taxation of corporations. 4 That these laws are dis- 
criminatory in favor of organized labor as against other forms 
of organizations probably no one would care to dispute, and it 
has been broadly intimated that provisions of this sort are un- 
constitutional, 5 while on the other hand, a clause exempting 
labor unions from the provisions of an anti-trust law has been 
declared constitutional. 6 

Though the incorporation of labor organizations is thus per- 
mitted, or even encouraged, they are for the most part unin- 
corporated, and are frequently described as voluntary associa- 
tions as distinguished from partnerships on the one hand and 
from incorporated bodies on the other. Though they require 
the payment of an initial sum on entrance, and of periodical 

1 Franklin Union v. People, supra. 

2 La., Acts 1892, No. 90, sec. 8; Mich., C.L., sec. 11382; Mont., Pen. C, 
sec. 325 ; Nebr., C.S., sec. 5343a, etc. 

3 Mass., Acts 1909, ch. 514, sec. 30. 
* Act of Aug. 6, 1909, 36 Stat. 113. 

» Cote v. Murphy, 159 Pa. St. 420, 28 Atl. 190 ; In re Grice, 79 Fed. 627 ; 
Waters-Pierce Oil Co. v. State, 48 Tex. Civ. App. 162, 106 S.W. 918. 
« Cleveland v. Anderson, 66 Nebr. 252, 92 N.W. 306. 



TRADE AND LABOR ASSOCIATIONS 219 

dues, they are not thereby constituted associations with a capi- 
tal stock ; and not being conducted for profit, they are not in 
general subject to the regulations of law applicable to business 
associations, incorporated or otherwise. 1 

Such bodies have at common law no legal status or authority, 
ranking with merely social organizations, so far as rights and 
powers are concerned. 2 The charter, so-called, of such an as- 
sociation is not granted by the state, but by a superior organiza- 
tion, and is rather a certificate of affiliation than a charter. 
The identity of an organization depends on its individual mem- 
bership and their mutual agreements rather than on any char- 
ter or certificate of affiliation, so that the latter can be changed 
without affecting the organization as an entity. 3 It conveys 
no property rights, but is a basis for such agreements as persons 
wishing to become members are supposed to make, and is binding 
to the extent at least of making conformity thereto obligatory 
under penalty of loss of membership. 4 The nature of such 
organizations is in part the result of the mutual agreements of the 
members among themselves on the basis of such charter and 
the constitution and by-laws, which are construed as being con- 
tracts between the members, 5 thus giving rise to a quasi corpo- 
rate organization; and it is in part the result of a joint interest 

1 Burt v. Lathrop, 52 Mich. 106, 17 N.W. 716 ; St. Paul Typothetse v. Book- 
binders' Union, 94 Minn. 351, 102 N.W. 725. 

2 In re Higgins, 27 Fed. 443 ; St. Paul Typothet® v. Bookbinders' Union, 
supra; Mayer v. Journeymen Stone Cutters, 47 N.J. Eq. 519, 20 Atl. 492 ; Bar- 
bour v. Albany Lodge, 73 Ga. 474 ; Iron Molders' Union v. Allis-Chalmers Co., 
166 Fed. 45, 91 CCA. 631. 

3 Shipwrights', etc., Association v. Mitchell, (Wash.), Ill Pac. 780. 
* O'Brien v. Musical Protective Union, 64 N.J. Eq. 525, 54 Atl. 150. 

8 Brown v. Stoerkel, 74 Mich. 269, 41 N.W. 921 ; Hammerstein v. Parsons, 38 
Mo. App. 333 ; Hyde v. Woods, 94 U.S. 523 ; Screwmen's Ass'n v. Benson, 75 
Texas 555, 13 S.W. 380. 



220 LAW OF THE EMPLOYMENT OF LABOR 

of the members in any funds or property accumulated by the 
association or by its agents or trustees, which, together with the 
fact that there is no responsible entity formed by incorpora- 
tion of any sort, leaving the individual members answerable for 
the debts and acts of the association, gives to such associa- 
tions at least some of the aspects of a partnership. 1 The rule 
as to partnership funds is also applicable, so that where an ac- 
tion is brought against an unincorporated association, its funds 
will be exhausted before the property of individual members is 
attached. 2 

The cases above cited are mainly those in which the rights 
of nonmembers were affected. The case is different when 
persons in the relation of fellow-members, bound by mutual 
agreements, raise questions within the association; and where 
the property of the association has been the subject of litigation 
between members it has been held that the laws applicable to 
corporations come into play. 3 In the Barrett case the court 
went so far as to deny altogether that a voluntary association 
not for profit partakes of the nature of a partnership, 4 though 
this may be regarded as a result of an exclusive consideration 
of the point in issue, which was the right of a withdrawing mem- 
ber to retain a portion of the union funds which was at the time 

1 Karges Furniture Co. v. Amalgamated Woodworkers, 165 Ind. 421, 75 N.E. 
877 ; Atkins v. Fletcher Co., 65 N.J. Eq. 658, 55 Atl. 1074 ; Patch Mfg. Co. v. 
Capeless, 79 Vt. 1, 63 Atl. 938 ; Allis-Chalmers Co. v. Iron Molders' Union, 150 
Fed. 155; Patterson v. District Council, 31 Pa. Super. 112; Rhode v. United 
States, 38 Wash. L. R. 26, 34 App. D.C. 249. 

* Inbusch v. Farwell, 66 U.S. 566 ; Branson v. Industrial Workers of the World, 
30 Nev. 270, 95 Pac. 354. 

8 Niblack on Societies, 221 ; Local Union No. 1, Textile Workers v. Barrett, 19 
R.I. 663, 36 Atl. 5 ; Rhode v. United States, supra. 

4 See also Richmond v. Judy, 6 Mo. App. 465; Brown v. Stoerkel, supra; 
St. Paul Typothetse v. St. Paul Bookbinders' Union, supra. 



TRADE AND LABOR ASSOCIATIONS 221 

in his hands. The court ruled that there was no partnership 
interest in any member giving him a right to any share, propor- 
tionate or otherwise, in the funds or property of the association. 
"He has merely the use and enjoyment of it while a member, 
the property belonging to and remaining with the society/ ' a 
view which is clearly correct, though it involves the imputation 
of a measure of corporate rights to a voluntary association. In 
the strict application of the common law rule, however, volun- 
tary associations of this nature cannot be recognized in their 
collective capacity and name as having any legal existence apart 
from their members ; they cannot, therefore, sue nor be sued, 
and it has been held that if incapacity is pleaded, an injunction 
will not lie against such an association, 1 and that no judgment 
will lie against an unincorporated union even though it has an- 
swered as defendant ; 2 though the court held in the latter case 
that an injunction would properly issue against a trade-union 
by name, and would operate to restrain all members who had 
knowledge of it. 3 It was held on appeal in the Allis-Chalmers 
case that where an action has been begun as against an associa- 
tion, and an answer has been made on behalf and in the name 
of the association, the question of incompetency not being 
raised, proceedings had will bind the association, and no ques- 
tion of incompetency will be heard on appeal. 4 The question 

1 Karges Furniture Co. v. Amalgamated Woodworkers, 165 Ind. 421, 75 N.E. 
877 ; Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753. 

1 Allis-Chalmers Co. v. Iron Molders' Union, 150 Fed. 155. 

» See also Iron Molders' Union v. Allis-Chalmers Co., 166 Fed. 45, 91 CCA. 
631 ; Jonas Glass Co. v. Glass Bottle Blowers' Ass'n., 72 N.J. Eq. 653, 66 Atl. 
953 ; In re Debs, 148 U.S. 564, 15 Sup. Ct. 900 ; American Steel & Wire Co. v. 
Wire Drawers, 90 Fed. 608, and cases there cited. 

« Iron Molders' Union v. Allis-Chalmers Co., 166 Fed. 45, 91 CCA. 631 ; 
Barnes & Co. v. Chicago Typographical Union, 232 111. 404, 83 N.E. 932. 



222 LAW OF THE EMPLOYMENT OF LABOR 

is inevitable also as to the effect of the violation of an injunction 
issued against an association, and in what form punishment for 
contempt can be directed against the organization; and it 
appears that the rule that no judgment will lie against an unin- 
corporated body would necessarily give way when that body 
has disregarded an order of the court directed specifically to it. 
As the punishment of an association considered in its corporate 
nature can be strictly only by a fine, the property of the associa- 
tion would first come under the hand of the court in the satis- 
faction demanded ; 1 but on account of the partnership nature 
of voluntary associations, the members' property may be at- 
tached, on a proper showing, 2 or the members and officers 
imprisoned, where the punishment is for contempts or criminal 
acts, 3 since the law will not be placed in the position of pro- 
nouncing penalties upon an abstraction such as an intangible 
organization, leaving the members free to disobey the orders of 
the court with impunity. 

In the absence of statutes fixing the capacity of an unincor- 
porated association it has been held in many cases that actions 
may be had by or against the members as individuals only, who 
may sue or be sued either by joining all of them, or one or more 
for all, if the numbers make it impracticable to join ail. 4 In 
the case last cited it was stated that the rule generally followed 
in Massachusetts requires the members to be individually 

1 Barnes & Co. v. Chicago Typographical Union, supra. 

2 Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 Atl. 938 ; Patterson v. District Coun- 
cil, supra; Branson v. Industrial Workers of the World, supra. 

» U.S. v. Debs, 64 Fed. 724 ; In re Debs, 158 U.S. 564, 15 Sup. Ct. 900. 

4 Allis-Chalmers Co. v. Iron Molders' Union, 150 Fed. 155 ; Cleland v. Ander- 
son, 66 Nebr. 252, 92 N.W. 306 ; St. Paul Typothetse v. Bookbinders' Union, 
supra; Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753. 



TRADE AND LABOR ASSOCIATIONS 223 

joined in suits at law, while in equity proceedings representative 
members may be taken for a numerous class. 

On the other hand are the cases already cited in which the 
union was regarded as an entity, and as such held liable in 
damages. In this view, damages may be assessed against an 
organization in an action against it alone, 1 or against a union as 
a joint wrongdoer with a designated person or persons; 2 and a 
nonsuit was upheld by a federal judge in a case where the 
plaintiff sought to recover damages for a violated contract of an 
unincorporated society against four members who were sued 
" individually and for themselves and for others, officers and 
members of the unincorporated association/ ' 3 

The matter may be settled by legislation authorizing the 
bringing of actions at law or suits in equity by or against unin- 
corporated associations having some distinguishing name or 
designation by such title ; 4 or by a law authorizing one of a 
number of persons jointly concerned as plaintiffs or defendants 
to appear for all. 5 A law of the former class, 6 granting the 

1 Purvis v. Brotherhood of Carpenters and Joiners, 214 Pa. St. 348, 63 Atl. 585. 

2 Wyeman v. Deady, 79 Conn. 414, 65 Atl. 129 (Deady was the business 
agent of the union) ; Branson v. Industrial Workers of the World, supra. 

3 Ehrlich v. Willenski, 138 Fed. 425, citing Ash v. Guie, 97 Pa. 493, 39 Am. Rep. 
818 ; Pain v. Sample, 158 Pa. 428, 27 Atl. 1107. (This case evidently turned on a 
classification of the union as a beneficial society, coming under a statute of the 
state (B. P. Dig. p. 219, sec. 16) by which members of such societies were relieved 
from personal liability for the obligations of the society, which might be proper 
if a breach of contract only was under consideration, but which could hardly be 
fairly applicable in many cases where union activities were under consideration.) 

* Mich., C.L., sec. 10025; Conn., G.S., sec. 583; N. J., G. S., p. 2588; Vt. f 
P.S., sec. 1448. 

6 Ind., A.S., sec. 270 (see Sourse v. Marshall, 23 Ind. 194) ; Ohio, Gen. Code, 
sec. 11257 (see Kealey v. Faulkner, 18 Ohio S. & C. P. Dec. 498) ; Nev., C.L., sec. 
3109 (see Branson v. Industrial Workers of the World, supra). 

« Mich., C.L., sec. 10025. 



224 LAW OF THE EMPLOYMENT OF LABOR 

right of action against the organization without limiting the 
common law right to proceed against the members as partners, 
was held to be constitutional and applicable to a labor organiza- 
tion. 1 The action of the court in the case in which a nonsuit 
was granted on account of the action being brought against 
certain members of the union rather than against the union as 
a whole 2 would restrict recovery of damages in a civil action 
to the funds of the association, which corresponds to an action 
against a corporation. As pointed out in the note, supra, this 
view rests on a statute of the state of Pennsylvania. 

As to the contracts of an unincorporated association, the in- 
dividual members are liable at common law either because they 
held themselves out as agents of a principal that had no existence, 
or because they are themselves principals, since there is no other 
in existence. 3 Part of the members cannot sue others on a 
contract of an association ; 4 or for tort on account of the neg- 
ligence of one employed by the association, since any such per- 
son is as much the employee of the aggrieved party as of his 
associates. 5 In this ruling the law of principal and agent is 
brought into view, which was formally held to apply in a case 
involving contracts between two unincorporated associations. 6 
The agency must be clearly made out, when a contract is the 
subject of action, since no individual member's liability will be 
presumed from the mere fact of association. 7 

1 U.S. Heater Co. v. Iron Molders' Union, 129 Mich. 354, 88 N.W. 889. 

1 Ehrlich v. Willenski, supra. * Lewis v. Tilton, 64 Iowa 220, 19 N.W. 911. 

« McMahon v. Rauhr, 47 N.Y. 67. 

* Martin v. N.P.B. Ass'n., 68 Minn. 521, 71 N.W. 701. 

• St. Paul Typothetse v. St. Paul Bookbinders' Union, supra, citing Ehrman- 
traut v. Robinson, 52 Minn. 335, 54 N.W. 188. 

7 Richmond v. Judy, 6 Mo. App. 465. See also Lawlor o. Loewe, 187 Fed. 522 
(C.C.A.). 



TRADE AND LABOR ASSOCIATIONS 225 

Being voluntary associations, their maintenance and preser- 
vation or the continued membership therein of any individual 
is not a subject that the courts can undertake to direct or se- 
cure, 1 though members will be protected against improper 
expulsion or other action depriving them of valuable status or 
of property in union funds, tools, or other advantages. 2 

It is obvious that in many respects courts of equity are better 
adapted to the determination of the rights of such bodies and 
of persons in controversy with them, since their intangible na- 
ture and the frequent inaccessibility or nonexistence of associa- 
tion funds make proceedings against the persons of individuals 
the only method of enforcing rights, which is a method of pro- 
cedure for which courts of equity are especially adapted, the 
judgments of law courts being generally enforced against a 
designated fund or object by proceedings in rem; there is, how- 
ever, a growing tendency to sink the distinctions between the 
two forms of procedure. Under the English common law, an 
unincorporated association could not come into court for any 
redress whatsoever of collective grievances, since the granting 
of charters of incorporation was a jealously guarded function of 
the state, and no body of men could by associating themselves 
together without such a charter arrogate to themselves any of 
the functions of an entity independent of and apart from the 
individuals composing it. 3 A treasurer might therefore em- 
bezzle the association funds with impunity. 4 This has been 
made the subject of statutory provision, however, so that there 

1 O'Brien v. Musical M. P. & B. Union, 64 N.J. Eq. 525, 54 Atl. 150. 

* O'Brien v. Musical M. P. & B. U., supra; Weiss v. Same, 189 Pa. St. 446, 42 
Atl. 118 ; Steinert v. United Brotherhood, 91 Minn. 189, 97 N.W. 668 ; Cotton 
Jammers, etc., v. Taylor, 23 Tex. Civ. App. 367, 56 S.W. 553. 

» Lloyd v. Loring, 6 Ves. 773. 4 Erie, Trade Unions, p. 4. 

Q 



226 LAW OF THE EMPLOYMENT OF LABOR 

is now a right in the members representing an association to 
proceed against a defaulting officer for the recovery of associa- 
tion property. 1 There is in the United States no question as 
to the right of an association not formed for illegal purposes to 
maintain an action for the recovery of its funds. 2 

Section 112. Rules, By-laws, etc. — The constitutions, rules, 
by-laws, or by whatever name called, the agreements accepted 
and entered into by the members of associations are contracts 
between themselves, and in so far as they are legitimate, will, 
on a proper showing, be enforced by the courts. 3 While a de- 
gree of restraint of trade is involved in every agreement not to 
accept employment except under conditions conforming to a 
rule fixed by an association, this fact alone does not invalidate 
such rule, so far as internal administration is concerned, but the 
extent, purpose, and methods of enforcement of such agreements 
may bring them under the ban of the law. A man cannot enter 
into a valid contract to the injury of a third party or the 
prejudice of the public, 4 and what an individual cannot lawfully 
do alone he cannot do by union with others, so that an agree- 
ment to surrender industrial freedom to an association is invalid 
and may vitiate the entire basis of an association's agreements. 5 
Thus an association was not allowed to enforce a fine against a 
member who had bid less for a piece of work than the rate fixed 
by the association of which he was a member, though the fine 



1 31 & 32 Vict., ch. 116. See R. v. Blackburn, C.C.C., Dec. 17, 1868. 

1 Snow v. Wheeler, 113 Mass. 179 ; Brown v. Stoerkel, 74 Mich. 269, 41 N.W. 
921 ; Rhode v. United States, 38 Wash. L. Rep. 26, 34 App. D.C. 249. 

> Flaherty v. Portland Longshoremen's B. Soc, 99 Me. 253, 59 Atl. 58 ; Brown 
v. Stoerkel, 74 Mich. 269, 41 N.W. 921. 

* Crawford v. Wick, 18 Ohio St. 190, 98 Am. Dec. 103. 

« Kealey v. Faulkner, 18 Ohio S. & C. P. Dec. 498. 



TRADE AND LABOR ASSOCIATIONS, 227 

was assessed in accordance with the rules; and this on the 
ground that while there was not an actual monopoly or control 
of the class of services involved, so far as the agreement went 
it was restrictive of competition, and subject to the same legal 
objection as a more extensive combination. 1 The court in this 
case went no further than to refuse to lend its aid in the collec- 
tion of the fine, but a rule that prescribes the violation of con- 
tracts or a refusal to handle interstate commerce from a pro- 
scribed railway, or otherwise brings about a conflict with public 
policy, will not only not be enforced, but will be made the sub- 
ject of judicial condemnation, 2 even to the extent of the disso- 
lution of the offending association. 3 It has been held that 
courts have no visitorial power to determine the reasonableness 
or otherwise of the rules of an association, the only question 
being as to whether or not they have been adopted according 
to the agreed methods of the body concerned ; 4 but it is obvious 
that this can relate only to the rules as such, and not to their 
enforcement or operation. If no property rights are involved, 
the enforcement of the rules will in general be left to the organi- 
zations themselves, and the courts will not intervene in such 
voluntary and personal matters as are usually involved in as- 
sociation arrangements ; 5 but where there are valuable rights, 
as of tools or other property, or benefit or insurance funds, or if 

1 More v. Bennett, 140 111. 69, 29 N.E. 888. See also Bailey v. Master Plumb- 
ers, 103 Tenn. 99, 52 S.W. 853. 

1 Waterhouse v. Comer, 55 Fed. 149 ; Gatzow v. Buening, 106 Wis. 1, 81 N.W. 
1003. 

3 Kealey v. Faulkner, supra. 

* Green v. Felton, 42 Ind. App. 675, 84 N.E. 166. 

' O'Brien *>. Musical P. & B. Union, 64 N.J. Eq. 525, 54 Atl. 150 ; Screw- 
men's, etc., Ass'n. v. Benson, 75 Texas 555, 13 S.W. 380 ; Jetton-Dekle Lumber 
Co. v. Mather, 53 Fla. 969, 43 So. 590. 



228 LAW OF THE EMPLOYMENT OF LABOR 

privileges of employment are affected, the courts will see that 
the rules are strictly complied with for the protection of mem- 
bers in their rights thereunder ; l so also in regard to objections 
of members against acts alleged to be outside the scope and pur- 
pose of the organization as indicated by its regulations ; and any 
member is entitled by his rights as such to call on the courts to 
enjoin a departure by the organization from its proper field of 
action. 2 Courts have also gone so far as to pronounce existing 
rules and by-laws inadequate to protect the members' rights, 
or unreasonable and void as determinative of a member's just 
rights. 3 

Not every rule that is unenforceable at law is, therefore, void, 
but the courts will say no more than that the persons party to 
such agreements are left to their own contracts, unless actually 
unlawful ; and no legal sanction of such border line agreements, 
as, for instance, those in restraint of trade, will be given. 4 
Where the enforcement of such rules by a union is shown to 
work injustice upon a member, he may by repudiating his agree- 
ment, recover upon an independent ground of action, his agree- 
ment being contrary to public policy. 5 And an employer's 
right to a free labor market will support his right to an injunc- 
tion to prevent the enforcement of the rules of a labor organiza- 

1 Steinert v. Carpenters and Joiners, 91 Minn. 189, 97 N.W. 668 ; Flaherty v. 
Longshoremen's Beneficial Soc., supra; Brennan v. Hatters, 73 N.J.L. 729, 65 
Atl. 165 ; Thompson v. Locomotive Engineers, 41 Texas Civ. App. 176, 91 S.W. 
834. 

* Flaherty v. Longshoremen, supra ; Otto v. Journeymen Tailors, 75 Cal. 
308, 17 Pac. 217. 

s People v. Musical M.P.U., 118 N.Y. 101,23 N.E. 129; Cotton Jammers', 
etc., Ass'n. v. Taylor, 23 Texas Civ. App. 367, 56 S.W. 553. 
4 O'Brien v. Musical M.P. & B.U., supra. 

• Brennan v. Hatters, supra. 



TRADE AND LABOR ASSOCIATIONS 229 

tion by means of fines and penalties against its members who 
may wish to continue in or to enter his employment. 1 It 
follows that rules and penalties directed against persons not 
members of the association are void, since no one can be required 
to purchase his freedom to earn a livelihood by submission to 
regulations imposed upon him by other than governmental 
agencies. 2 

It has occurred in actions against persons who were members 
or officers of labor organizations that the defense was offered 
that the acts complained of were done only as carrying out the 
rules and orders of the union. From what has been said as to 
the status and character of voluntary associations, it is apparent 
that such a defense could not be allowed, and the courts so hold, 3 
intimating broadly that the existence of rules prescribing such 
conduct as was made the ground of the action was in itself proof 

1 Willcut & Sons Co. v. Bricklayers' Union, 200 Mass. 110, 85 N.E. 879 ; Jersey 
City Printing Co. v. Cassidy, 63 N.J. Eq. 759, 53 Atl. 230 ; Longshore Printing 
Co. v. Howell, 26 Ore. 527, 38 Pac. 547. 

* March v. Bricklayers', etc., Union, 79 Conn. 7, 63 Atl. 291 ; Union P.R. Co. 
v. Ruef, 120 Fed. 102 ; Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287 ; Erd- 
man v. Mitchell, 207 Pa. 79, 56 Atl. 327 ; Pickett v. Walsh, 192 Mass. 572, 78 
N.E. 753 ; Burke v. Fay, 128 Mo. App. 690, 107 S.W. 408. In the March case a 
penalty was assessed against a brick manufacturer who had sold bricks to an 
"unfair" boss mason, and subsequently to an employer of union labor. This 
latter employer was threatened with a strike unless he would guarantee the 
payment of the fine against March. This he did, and afterwards paid the fine, 
withholding the amount out of money due March, who then sued the union to 
recover the sum. In this he was successful, the court holding that the money was 
secured by threat, and not at all in the way of the adjustment of the terms of 
trade competition ; though even this would not have justified the methods used 
to procure the payment of the money. See further, note, p. 215. 

3 Gatzow v. Buening, 106 Wis. 1, 81 N.W. 1003 (Buening, as secretary of a 
liverymen's association ordered a hearse and carriages driven away from a 
funeral because the undertaker was not a member) ; Boutwell v. Marr, 71 Vt. 
1, 42 Atl. 607 (defendants withheld business from Boutwell on account of an 
agreement under penalty to deal only with members of the association) . 



230 LAW OF THE EMPLOYMENT OF LABOR 

of an illegal purpose. It may be said, therefore, that obedience 
to such rules, instead of being matter of defense, would rather 
be construed as an offense in itself, the rules being evidence of 
an unlawful purpose, as against public policy. The general 
limitation on rules of associations is succinctly stated in a case 
in which it was said that they must not be in violation of the 
laws of the land, or of any inalienable right of the members. 1 

Where a labor organization has been enjoined from interfer- 
ing with the employment of members of another, an act, the 
purpose and effect of which are to interfere with such persons, 
is a violation of the injunction, and the claim that such an act 
was performed merely as carrying out the rules of a voluntary 
association is no defense. 2 

Section 113. Membership. — The rights of members of labor 
organizations are necessarily chiefly controlled by the terms of 
agreement embodied in the constitutions and by-laws of the 
organizations themselves. The effect of such agreements and 
the limitations of members' rights thereunder have been con- 
sidered in part in the foregoing section. Members will in general 
be held to look to the rules for their rights, and actions taken 
under such rules will not be interfered with unless there is proof 
of the violation of civil rights or of a failure of the organization 
to carry out the provisions of its own regulations. 3 Expulsion 
is the extreme penalty enforceable by an organization of this 
class, the collection of coercive or penal fines not being favored 
on account of the restrictive features frequently contained in 

1 Otto v. Journeymen Tailors, 75 Cal. 308, 17 Pac. 217. 

J Chicago Federation of Musicians v. American Musicians' Union, 139 III. 
App. 65. 

« Screwmen's, etc., Ass'n. v. Benson, 75 Tex. 555, 13 S.W. 380 ; Otto v. 
Journeymen Tailors, 75 Cal. 308, 17 Pac. 217. 



TRADE AND LABOR ASSOCIATIONS 231 

the rules. It has been said that no mandatory injunction could 
properly issue to compel restoration to membership of one ex- 
pelled from a society, as a party cannot be compelled by in- 
junction to undo what he has done ; 1 but the weight of au- 
thority is on the other side, and where the rules are shown to 
be inadequate to protect a member's rights, 2 or have not been 
complied with in due form, 3 or if their enforcement would be 
against public policy, 4 a mandamus will issue for a restoration 
to membership. This does not preclude the right to redress 
for damages shown to have accrued as the result of such im- 
proper expulsion, and the issue of the mandamus may be re- 
garded as supporting the claim for such damages. 5 Besides 
material interests, the standing and character of organized labor 
as affecting opportunities of employment may come into ac- 
count in reckoning the value of membership in a labor organiza- 
tion. 6 A member seeking restoration to membership will be 
required to exhaust the means of redress offered him within the 
organization before the courts will take cognizance of his alleged 
grievances ; 7 though this rule will not be enforced where dam- 
ages are sought for the violation of property rights. 8 Where 
loss of employment is caused by unlawful suspension, restora- 
tion by the union leaves the matter of damages open to trial at 

1 Champion v. Hannahan, 128 111. App. 387. 

» People v. Musical M.P.U., 118 N.Y. 101, 23 N.E. 129. 

3 Weiss v. Musical M.P.U., 189 Pa. St. 446, 42 Atl. 118; Cotton Jammers', 
etc., Ass'n. v. Taylor, 23 Texas Civ. App. 367, 56 S.W. 553 ; Dingwall v. Asso- 
ciation, 4 Cal. App. 565, 88 Pac. 597. 

* Schneider v. Local Union, 116 La. 270, 40 So. 700. 
8 People v. Musical M.P.U., supra. 

« Campbell v. Johnson, 167 Fed. 102, 92 CCA. 554. 

» Harris v. Detroit Typographical Union, 144 Mich. 422, 108 N.W. 362 ; St. 
Louis S. W. R. Co. v. Thompson, 102 Tex. 89, 113 S.W. 144. 

• St. Louis S.W.R. Co. v. Thompson, supra. 



232 LAW OF THE EMPLOYMENT OF LABOR 

law, and a statement by the union that it provides adequate 
means of redress will not prevent the court from taking the ques- 
tion under consideration and rendering judgment according to 
the whole evidence ; l so also where the injured person takes an 
appeal within the union on the matter of improper procedure 
under the rules, since such an appeal cannot be construed as 
waiving one's legal right to damages resulting from the pro- 
cedure of which complaint is made. 2 If the expulsion was 
procured by the interposition of a third party, such party may 
be joined as a defendant in an action for damages; but inas- 
much as he alone could not have effected the expulsion, he can- 
not be held alone responsible therefor. 3 

It has already been pointed out that a member may obtain 
redress against a union, either where the rules have not been 
complied with or where they do not offer adequate redress for 
grievances resulting from injurious and unwarranted action by 
the union in its official proceedings ; and that this may extend 
so far as to procure the dissolution of a union and the distribu- 
tion of its funds on the complaint of members unfairly dealt 
with, on a showing that the basis of the organization is an illegal 
agreement in restraint of trade, the agreement being disaffirmed 
by the complaining members ; 4 the courts would, however, 
refuse to seek to secure any rights claimed by members within 
such an organization. Where the conduct complained of is 
that of an employee or agent of the association, no redress can be 
had by a member unless against the person guilty of the wrong 
complained of. 5 

* Campbell v. Johnson, 167 Fed. 102, 92 CCA. 654. 

» Blanchard v. District Council, 77 N.J.L. 389, 71 Atl. 1131. 

• St. Louis S. W. R. Co. v. Thompson, supra. 

« Keaiey v. Faulkner, 18 Ohio S. & C.P. Dec. 498. 

« Martin v. N.P. Ben. Ass'n., 68 Minn. 521, 71 N.W. 701. 



TRADE AND LABOR ASSOCIATIONS 233 

Applicants for membership must, of course, comply with the 
requirements prescribed for admission to such membership, 
and no one can demand admission as a right. On the other 
hand, an association can make no claim on anyone not a member 
on account of benefits for protection, so called, on the ground 
that it allowed him to work for a time on jobs on which its 
members were engaged, or on other grounds, since the right of 
employment is one of a free citizen, and does not depend on the 
approval of any association or body of men. 1 Representations 
made by applicants for membership are not necessarily guar- 
antees, but are to be reasonably construed as expressions of the 
applicant's belief ; as, for instance, where a workman declares 
himself able to command the average wages of his trade. 
Forfeiture of preliminary payments on the amount of the initia- 
tion fee, the return of which to a rejected applicant is conditioned 
on the correctness of the statements made by him in his appli- 
cation, is not warranted therefore on the ground that he was not 
finally regarded by the union as competent, though it was within 
their power to reject his application. 2 Representations must be 
in good faith, however, and the courts will decide matters of 
fact submitted to them in the course of controversy; fraud or 
falsity will be held by them as sufficient grounds for refusing as- 
sistance to an expelled member who is shown to be guilty thereof . 3 

While a member of a labor organization may join an outside 
person as defendant in a suit for damages for procuring his ex- 
pulsion therefrom, he has as a matter of common law no recovery 
against an employer who may insist on his withdrawal from a 

1 Levin v. Cosgrove, 75 N.J.L. 344, 67 Atl. 1070. 
J Levin v. Cosgrove, supra. 

3 Parkinson Co. v. Building Trades Council, 154 Cal. 581, 98 Pac. 1027; 
Krause v. Sander, 122 N.Y. Supp. 54. 



234 LAW OF THE EMPLOYMENT OF LABOR 

union as a condition of employment, since it is a part of the 
freedom of contract of either party to make or refrain from such 
contracts on whatever grounds seem to them sufficient. 1 A 
number of states have undertaken to regulate this subject by 
statute, providing penalties against employers who make it a 
condition that their employees shall not become or remain 
members of labor organizations. 2 With practical unanimity 
this type of statute has been declared unconstitutional, as in- 
terfering with the rights of all men voluntarily contracting to 
make or continue their contracts in accordance with their own 
choice, so long as nothing injurious to the public interest is in- 
volved. Furthermore, such laws restrict the freedom of a 
certain class of individuals, and are held void as infringing on 
the rights of such persons in the formation of contracts. 3 The 
sole exception to this view appears to be a ruling by an Ohio 
court that the law of that state was constitutional, since it did 
not interfere with the right to discharge, but only prohibited 
coercing or attempting to coerce an employee into quitting a 
union. 4 Such a ruling leaves the law on the statute books, but 
takes away any practical effect it may have been assumed ever 
to have. 

A certain protection of the rights of members in a collective 

1 Boyer v. Western Union Tel. Co., 124 Fed. 246 ; People v. Marcus, 185 N.Y. 
257, 77 N.E. 1073. 

2 Cal. Pen. Code, sec. 679 ; Conn., G.S., sec. 1297; Mass., Acts 1909, ch. 154, 
sec. 19; Ohio, Gen. Code, sec. 12943; Okla., Acts 1907-1908, ch. 513; U.S., 
30 Stat. 428. 

» Gillespie v. People, 188 111. 176, 58 N.E. 1007 ; Coffeyville Brick, etc., Co. v. 
Perry, 69 Kans. 297, 76 Pac. 848 ; State v. Julow, 129 Mo. 163, 31 S.W. 781 ; 
Commonwealth v. Clark, 14 Pa. Super. Ct. 435; State v. Kreutzberg, 114 Wis. 
530, 90 N.W. 1098 ; Adair v. United States, 208 U.S. 161, 28 Sup. Ct. 277. 

* Davis v. State, 30 Ohio Wkly. Law Bui. 342. 



TRADE AND LABOR ASSOCIATIONS 235 

sense is attempted by a law of one state, which forbids the giving 
of bribes to officers or agents of unions for the purpose of secur- 
ing the adjustment of labor disputes, or of influencing them in 
the performance of their duties as representatives of such or- 
ganizations. 1 

Section 114. Collective Agreements. — The principles govern- 
ing contracts of employment considered in Chapter I are those 
that apply in cases of contracts between individuals ; but in the 
development of organizations in industry, there has arisen a 
form of contract in which the parties are a labor organization or 
its representative on the one hand, and an employer or the rep- 
resentative of a group of employers on the other. These 
contracts concern themselves with wages, hours of labor, clas- 
sification of employees, and, in fact, with all the conditions of 
employment. They may be said generally to attempt to provide 
for their own enforcement, by provisions for arbitration, the 
deposit of a forfeit, or otherwise without appeal to law. The 
legal construction of such contracts has not, therefore, been 
much discussed by the courts, and the cases available involve 
such a variety of elements that a general rule can hardly be 
deduced. The situation is further complicated by an apparent 
conflict of opinion as to the validity of such contracts as passed 
upon by the courts of different states. While their validity, 
per se, would seem to follow from the general law allowing free- 
dom of contract and of association, the extent to which the 
parties thereto can go will be limited by the rule that no one can 
barter away his own freedom, or form monopolistic combina- 
tions or other contracts in violation of public policy; and an 
agreement involving enforcement by means of fines and penal- 

1 N.Y., C.L., ch. 40, sec. 380. 



236 LAW OF THE EMPLOYMENT OF LABOR 

ties of a coercive nature will be considered as vitiated thereby. 1 
Where there is no attempt to coerce third parties, however, such 
parties can make no effective attack on a collective agreement, 
even though its observance by the parties to it may reduce the 
opportunities of the third party for securing employment, 2 
since the freedom of contract enjoyed by individuals extends 
to them in conjunction with others for the formation of united 
contracts on matters of common interest. 3 Where the question 
lies between a labor union and one of its members who is un- 
willing to abide by the terms of his agreement, the rules and 
procedure of the union offer the natural and usually the only 
means of redress ; though, as already stated, these rules must not 
interfere with the legal rights either of the employee 4 or of the 
employer. 5 But it must be a party in interest who raises the 
question of the legality of the contract; for though it may be 
invalid and unenforceable as overstepping rules of public policy, 
it requires more than a mere negative showing of such facts to 
lead to the intervention of the courts, since on such a showing the 
law takes the contract as it finds it, and as it finds it leaves it. 6 
In a recent case an injunction issued against the newly elected 
officers of a labor organization who sought to incite workmen to 
strike in violation of an existing contract, thus implying that 

1 Delaware, L. & W. R. Co. v. Switchmen's Union, 158 Fed. 541 ; Hopkins v. 
Oxley Stave Co., 83 Fed. 912, 28 CCA. 99 ; Hilton v. Eckersley, 6 Ell. & Bl. 
47 ; Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607 ; Martell v. White, 185 Mass. 255, 69 
N.E. 1085. 

i National Fireproofing Co. v. Mason Builders, 145 Fed. 260, 169 Fed. 259 
(CCA). \ 

s National Protective Ass'n. v. Cumming, 170 N.Y. 315, 63 N.E. 369. 

* Brennan v. Hatters, 73 N.J.L. 729, 65 Atl. 165. 

* Willcut <fe Sons Co. v. Bricklayers, 200 Mass. 110, 85 N.E. 897. 

6 National Fireproofing Co. v. Mason Builders, supra, citing Brown v. Jacobs' 
Pharmacy Co., 115 Ga. 433, 41 S.E. 553. 



TRADE AND LABOR ASSOCIATIONS 237 

the contract could be fairly assumed to secure to the employer 
valuable rights, even though no injunction would issue to pre- 
vent the workmen themselves from striking. 1 In another case, 
in which an employer was seeking to prevent a strike and offered 
in evidence a contract with the union, it was held that union 
officials could not be enjoined from counseling with the members 
of their unions, where no strike could take place without the 
favorable vote of the members themselves ; 2 and in subsequent 
hearings in the Barnes case, the court refused to prevent union 
officials from counseling with or paying benefits to striking em- 
ployees. 3 The validity of a contract between an employer and 
a union was upheld by a divided bench where the point involved 
was the collection of a note given by the employer to guarantee 
his observance of the terms of the agreement ; 4 and a federal 
court directed the receiver of a railroad under its care to make 
an "appropriate contract" with an organization of railroad 
employees on the subject of the conditions of employment of its 
members. 5 

On the ground that the contract did not call for the employ- 
ment of particular individuals, but only of individuals of a cer- 
tain class, it has been held that the acts of employers and em- 
ployees in terminating individual contracts could not be reviewed 
under the terms of a collective contract. 6 It has also been held 

1 Barnes & Co. v. Berry, 156 Fed. 72. 

2 Delaware, L. & W. R. Co. v. Switchmen's Union, supra. 
" 157 Fed. 883, 169 Fed. 225, 94 CCA. 501. 

* Jacobs v. Cohen, 183 N.Y. 287, 76 N.E. 5 ("a regrettable decision," 41 Am, 
L. Rev. 203). 

8 Waterhouse v. Comer, 55 Fed. 149 (but condemning and eliminating one 
rule). 

8 Burnetta v. Marceline Coal Co., 180 Mo. 241, 79 S.W. 136 ; Barnes & Co. v. 
Berry, 157 Fed. 883 ; Delaware, L. & W. R. Co. v. Switchmen's Union, supra. 



238 LAW OF THE EMPLOYMENT OF LABOR 

that such an agreement is not adequate to overcome the specific 
provisions of contracts made directly between employers and 
employees ; x and a court refused to read into individual con- 
tracts with workmen the provisions of a contract with the union 
to which the men belonged, on the ground that the union was 
incompetent to contract for its individual members ; 2 nor will 
an action for damages lie against an unincorporated union as a 
union for the breach of a contract made by it on behalf of its 
members, since it is not a legal person. The court declined to 
consider what would have been the result if the action had been 
brought against individual members. It went so far as to say, 
however, that if the members were in any way liable on the 
contracts of the association, the liability would rest on the doc- 
trine of principal and agent and not on that of partnership, 
since the association had not at all the nature of a business 
enterprise and could not contract as such. 

It is not easy to see, on what grounds actions could be brought 
against individuals under a contract the terms of which were not 
allowed to affect the conditions of their employment. The 
better view seems to be that of a case in which it was said that 
in so far as there was any real contract it must have been be- 
tween individual members of the respective organizations. 3 In 
this case the formal parties to the contract were the represen- 
tatives of certain employers' and employees' associations respec- 
tively, and the court held that while the resultant contract was 
in form between two international associations, there were in 
reality separate contracts between employers and employees 

1 Langmade v. Olean Brewing Co., 121 N.Y.S. 388. 

2 Burnetta v. Marceline Coal Co., supra. 

3 Barnes & Co. v. Berry, 169 Fed. 225, 94 CCA. 501. 



TRADE AND LABOR ASSOCIATIONS 239 

who were members of the various organizations; "or rather, 
that the provisions of the contract, upon its being entered into, 
became terms of the separate contracts of employment between 
each member of the Typothetae [the employer's association] and 
the members of the union in his employ." 

The legal value of an agreement of the sort under considera- 
tion is clearly very doubtful. The moral effect has been widely 
recognized, but the incorporation of penalty provisions adds 
little to that effect, since an inquiry into all the provisions and 
tendencies of such agreements has generally resulted in disclosing 
conditions with which the courts refuse to meddle; while the 
general rule of the unenforceability of labor contracts and the 
inequality of status that would result from binding an employer 
when the employee is free to abandon service, are obstacles to 
the granting of legal or equitable validity thereto. While an 
employer is at liberty to discharge a workman objectionable to 
the union without incurring liability to him for the act, the 
existence of such an agreement is no defense for the union in 
cases where it procures such discharge with no other justification 
than it purposed to procure his discharge as a punishment for 
his failure to make application for membership in the union. 1 
If, however, he incurs suspension from his union, the agreement 
therewith for the exclusive employment of members in good 
standing is sufficient warrant for his discharge, 2 and the associa- 
tion would not be in any way liable in damages for procuring his 
discharge if his suspension was effected with proper regard for 
the by-laws of the association. It is not easy to conceive that 
a court of equity would order an employer who had contracted 

1 Berry v. Donovan, 188 Mass. 353, 74 N.E. 603 ; Curran v. Galen, 152 N.Y. 
33, 46 N.E. 297. * Scarano v. Lemlein, 121 N.Y.S. 351. 



240 LAW OF THE EMPLOYMENT OF LABOR 

to employ only union men, to discharge a nonunion workman 
whom he had retained in violation of the terms of his agreement, 
or to hire union workmen furnished him by union officials, 
regardless of his opinion of their fitness. It would follow that a 
court of law would not enforce the payment of a note or other 
forfeiture conditioned on the observance of a contract of this 
sort ; and the payment of a fine by an employer to settle a dis- 
pute following the alleged violation of a collective agreement is 
not conclusive, since the employer may be able to show to the 
jury in an action to recover the fine that there was coercion to 
procure its payment, so that recovery thereof may be allowed. 1 

The steps that the parties themselves may take or the extent 
to which they may go in the way of strikes, lockouts, and boy- 
cotts for the procurement or enforcement of collective agree- 
ments will receive consideration in other sections. 

Section 115. The Closed Shop. — The collective agreement 
usually embodies a so-called closed shop provision, restricting 
employment to members of the contracting labor organizations 
or of bodies affiliated therewith, or to persons not ''objection- 
able to the union from any cause." 2 If it relates to employment 
on public works, such provision is condemned with practical 
uniformity, as making an unlawful discrimination, tending to 
create monopoly by the restriction of competition, and tending 
also to increase the cost of the work, which is against public 
policy and not within the power of the contracting board or 

1 Burke v. Fay, 128 Mo. App. 690, 107 S.W. 408, citing Carew v. Rutherford, 
106 Mass. 1, 8 Am. Rep. 287 ; March v. Bricklayers' etc., Union, 79 Conn. 7, 63 
Atl. 291. The opposite view was taken in Jacobs v. Cohen, supra; see also 
Simers v. Halpern, 114 N.Y. Supp. 163, in which it was held that such a note was 
not void for want of consideration. 

* Berry v. Donovan, 188 Mass. 353, 74 N.E. 603. 



TRADE AND LABOR ASSOCIATIONS 241 

officials. 1 There is a distinction allowed between public and 
private employment in this respect, as was brought out in the 
Toole case, cited above, in which the court said that "a contract 
between private persons may provide that it shall cease to be 
obligatory or be void if either party to it shall employ nonunion 
men, and the law will permit the provisions to have full force ; 
and so with an inhibition against the hiring of union men and 
with all other stipulations which are not impossible of perform- 
ance, not immoral, nor contrary to public policy." On this 
view a contract with an employer to retain in his service only 
members of the union which is party to the agreement is valid, 
so that no injunction against the discharge of nonunion mem- 
bers would lie ; 2 and indeed to hold otherwise would be to claim 
for the courts the power of supervising the conduct of employers 

1 State v. Toole, 26 Mont. 22, 66 Pac. 496 ; Adams v. Brennan, 177 111. 194, 52 
N.E. 314; Lewis v. Board, 139 Mich. 306, 102 N.W. 756; Atlanta v. Stein, 111 
Ga. 789, 36 S.E. 932 ; Marshall & Bruce Co. v. Nashville, 109 Tenn. 495, 71 S.W. 
815. In this connecton may be noted the ruling of the U.S. Civil Service 
Commission and the declarations of President Roosevelt in a case involving the 
rights of employees in the Government Printing Office. William A. Miller, a 
bookbinder, was expelled from his union, and, upon notice to the Public Printer, 
was discharged from his employment because of such expulsion. On appeal 
to the Civil Service Commission, his reinstatement was requested, since "the 
Commission does not consider expulsion from a labor union, being the action of 
a body in no way connected with the public service nor having authority over 
public employees, to be such a cause as will promote the efficiency of the public 
service." President Roosevelt thereupon ordered reinstatement, saying, 
"There is no objection to the employees of the Government Printing Office 
constituting themselves into a union if they so desire ; but no rules or resolutions 
of that union can be permitted to override the laws of the United States ;" and 
again, "In the employment and dismissal of men in the government service, I 
can no more recognize the fact that a man does or does not belong to a union as 
being for or against him than I can recognize the fact that he is a Protestant or 
Catholic, a Jew or a Gentile, as being for or against him." Twentieth Rep., 
U.S.C.S. Com., pp. 147-150. 

» Mills v. Printing Co., 91 N.Y. Supp. 185, 99 App. Div. 605. 



242 LAW OF THE EMPLOYMENT OF LABOR 

and employees in the matter of the termination and formation 
of contracts of employment to an extent entirely unwarranted 
(sec. 3.), and the agreement can hardly be said to have had 
weight in influencing such a decision. A different case was 
presented where local associations of employers and employees 
had entered into an agreement for the employment of members 
of the employees' association only, and a discharged workman 
sued to recover damages for the loss of employment. 1 It was 
held that such a contract could not be supported, that it was no 
defense to the union that it was party thereto, and that the 
discharged employee could recover damages from the union for 
interfering to procure his discharge. The distinction was made 
by the judge in the Mills case between that case and the Curran 
case that the latter was an attempt to legalize a plan of com- 
pelling workmen not in affiliation with the organization to join 
it at the peril of being deprived of their employment. It was 
said that there is a manifest discrimination, well recognized, 
between a combination of workmen to secure the exclusive em- 
ployment of its members by a refusal to work with none other, 
and a combination whose primary object is to procure the dis- 
charge of an outsider and his deprivation of all employment. 
In the first case the action of the combination is primarily for 
the betterment of its members ; in the second case such action 
is primarily "to impoverish and crush another " by making it 
impossible for him to work there, or, so far as may be possible, 
anywhere. The difference is that which exists between a com- 
bination for the welfare of self and one for the persecution of 
another. The one may necessarily but incidentally require the 
discharge of an outsider; the primary purpose of the other is 

1 Curran v. Galen, 152 N.Y. 33, 46 N.E. 297. 



TRADE AND LABOR ASSOCIATIONS 243 

such discharge and his exclusion from labor in his calling. This 
reasoning follows closely that of a concurring opinion in a case l 
in which the method of procuring the closed shop was by strikes 
rather than by means of contracts with employers, and which 
sustained the right of the union to declare strikes in order to 
secure such an end, so that the discharged workman had no 
redress. The legality of closed shop contracts has been upheld 
in other cases on the ground in part that but a single employer 
was involved, .so that workmen were not compelled to join the 
union in order to procure employment in the locality, 2 also that 
the contract was not procured by duress, nor was there pressure 
exerted "so imperative as to amount to compulsion" to procure 
the discharge of nonunion workmen. 3 

While the attitude of the courts of New York may therefore 
be said to be favorable to the closed shop agreement, those of 
Illinois seem to present a contrary view. Thus where a strike 
was ordered for the purpose of coercing an employer into signing 
such a contract, it was said that the attempt to thus procure 
the agreement was unlawful as violative of the clear legal right 
of the company and unjust and oppressive as to those who did 
not belong to labor organizations. 4 Such agreements are also 
said to be unlawful as tending to monopoly by excluding work- 

1 National Prot. Ass'n. v. Cumming, 170 N.Y. 315, 334, 63 N.E. 369. The 
present writer has been entirely unable to discover the distinctions pointed out 
by the judges between the Cumming case and the Curran case. It was in evi- 
dence in the Cumming case that the agent of the union declared that if he ever 
found the plaintiff or his associates on a job in New York or vicinity, a strike 
would be called by order of the board of delegates ; that he would not allow 
them to work on any job except a small, cheap job, and by his permission. See 
dissenting opinion concurred in by three judges, at p. 336 of 170 N.Y., p. 375 of 
63 N.E. * Jacobs v. Cohen, 183 N.Y. 287, 76 N.E. 5. 

» Kissam v. Printing Co., 199 N.Y. 76, 92 N.E. 214. 

* O'Brien v. People, 216 111. 354, 75 N.E. 108. 



244 LAW OF THE EMPLOYMENT OF LABOR 

men not members of the union. 1 And in the Massachusetts 
courts damages have been allowed as against members of a labor 
organization procuring the discharge, under a closed shop agree- 
ment, of a workman not belonging to the union which was party 
to the contract. 2 The ground on which such agreements are 
upheld is that they are beneficial to the employer, doing away 
with disputes ; that they represent the expression of the interests 
of the workmen seeking employment on terms and under con- 
ditions agreed upon among themselves ; that the acts of work- 
men in securing and enforcing such agreements are nothing more 
than trade competition, the purpose being to benefit the mem- 
bers of the union by securing them employment ; and that if 
such is the purpose of the agreement and the acts thereunder, 
and not primarily to injure others, the agreement is defensible 
as a competitive measure, even though others are incidentally 
deprived of employment by reason thereof. 3 In the case, 
Berry v. Donovan, cited above, it was held, however, that an 
interference by a combination of persons to obtain the discharge 
of a workman because he refuses to comply with their wishes, 
for their advantage, in some matter in which he has a right to 
act independently, is not competition. "The necessity that the 
plaintiff should join this association is not so great, nor is its 
relation to the rights of the defendants, as compared with the 
right of the plaintiff to be free from molestation, such as to 
bring the acts of the defendants under the shelter of trade 
competition.' ' 4 

1 Christensen v. People, 114 111. App. 40; Folsom v. Lewis, (Mass.) 94 N.E. 
316. ! Berry v. Donovan, 188 Mass. 353, 74 N.E. 603. 

• National Prot. Ass'n. v. dimming, supra; Kissam v. Printing Co., supra; 
National Fireproofing Co. v. Mason Builders' Ass'n., 169 Fed. 259 (C.C.A.). 

* Plant ©.Woods, 176 Mass. 492, 57 N.E. 1011; see also Folsom v. Lewis, 
supra. 



TRADE AND LABOR ASSOCIATIONS 245 

Under the rules laid down in the New York cases, an associa- 
tion of employers, covering practically the whole of a line of 
trade in a locality, cannot direct its members to employ only 
the members of a designated labor organization, though an 
individual employer might have such an arrangement ; but such 
a restriction of employment would result from the action of a 
large and controlling organization as is contrary to public 
policy. 1 It follows that a bond given by a member of the 
association to secure compliance with its orders is not breached 
by a refusal to comply with such a direction, nor can any pen- 
alty be collected on account of such refusal. 

Obviously a difficult question to determine, under the view 
holding closed shop contracts legal, will be that of discovering 
when the agreement is merely a matter of trade competition, 
devoid of malice, and not tending to monopoly ; and when it is 
so extensive as to fall under the ban of monopoly, or so expres- 
sive of bad motive as to be condemned as malicious. No agree- 
ment can be viewed as standing on the same footing as the re- 
fusal of an individual to deal with another, since there is the 
original necessity of numbers to originate such an agreement; 
and the enforcement of it is by way of penalty on both members 
and employers, thus restricting their free choice, so that the 
arrangement falls under the condemnation of all undertakings 
by which it is sought to compel third parties to purchase the 
privilege of engaging in business by concessions to unauthorized 
and unofficial organizations. 2 The supreme court of Con- 



1 McCord v. Thompson-Starrett Co., (N.Y.) 92 N.E. 1090, affirming 113 N.Y. 
Supp. 385, 129 App. Div. 130. 

1 Union P. R. Co. v. Ruef, 120 Fed. 102 ; Aikens v. Wisconsin, 195 U.S. 194, 25 
Sup. Ct. 3 ; Reynolds v. Davis, 198 Mass. 294, 84 N.E. 457. 



246 LAW OF THE EMPLOYMENT OF LABOR 

necticut x must, however, be cited as countenancing such agree- 
ments, in addition to the citations already given. 

Whichever view is taken of the agreements as such, where it 
appears that they were procured by threats* and coercion their 
validity would be open at least to serious question, and if coer- 
cion were proved, they would be voidable. 2 Furthermore, the 
courts will not be concluded by the fact that the original agree- 
ment was voluntary, if its observance is found to be procured 
by measures amounting to coercion or intimidation by reason 
of which the subsequent freedom of choice is wrongfully and 
illegally restrained. 3 

The effect of the closed shop agreement on the liability of 
employers for injuries to employees whose selection and employ- 
ment is regulated by such agreements has already been noticed 
(sec. 96). 

Section 116. The Union Label. — One of the methods by 
which labor organizations undertake to strengthen their influ- 
ence and to emphasize the benefits of organization is by the 
adoption of a mark or label, somewhat of the nature of a trade- 
mark, the privilege of the use of which is restricted to manu- 
facturers who comply with the conditions fixed by the union 
adopting the label. The question of the propriety of classing 
such labels with trade-marks turns on the definition of the 
latter term. If a trade-mark is assumed to be the mark of a 
trader or manufacturer, implying that the article bearing it was 
made or sold by him, then the rules of law applicable to trade- 

" State v. Stockford, 77 Conn. 227, 58 Atl. 769. 

* Doremus v. Hennessy, 176 111. 608, 52 N.E. 924 ; 10 Am. & Eng. Enc, 2 Ed., 
p. 321. 

« Martell v. White, 185 Mass. 255, 69 N.E. 1085 ; Boutwell v. Marr, 71 Vt. 1, 42 
Atl. 607. 



TRADE AND LABOR ASSOCIATIONS 247 

marks do not extend to union labels ; and on this view it has 
been held that such labels cannot be protected, since they do 
not indicate any individual manufacturer, nor " point distinctly 
to the origin or ownership of the article to which applied.' ' 1 In 
another case it was said that the plaintiff could defend no special 
title to a label, since it was not a trader, and furthermore because 
the words of the label, " opposed to inferior rat-shop, cooly, 
prison, or filthy tenement house workmanship/ ' showed a pur- 
pose to stigmatize all workmen of the craft not members of the 
union, so that equity would offer no redress for the alleged 
grievances. 2 On the ground that the right to a trade-mark can 
not exist apart from a business, and that such a mark is not 
itself property, the officers and members of a union were held 
not to be entitled to an injunction restraining the unauthorized 
use of the label of the union. 3 

The Supreme Court of the United States defines a trade-mark 
as a device to indicate " origin or ownership," and this would 
appear to be broad enough to cover the case of the label of a 
union. The subject has been made a matter of legislative ac- 
tion in nearly all of the states of the Union, provision being made 
for the registration and protection of the label adopted, and in 
many cases the word, " trade-mark " is so defined as to include the 
union label. 4 Apart from statute, it has been held that while 
such a label is not a trade-mark, and no one has a vendible 
interest therein, but only a contingent right to use it, equity 
will nevertheless protect a complainant against fraudulent use 

1 Cigar Makers v. Conhaim, 40 Minn. 243, 41 N.W. 943. 

2 McVey v. Brendel, 144 Pa. St. 235, 22 Atl. 912. 

3 Weener v. Brayton, 152 Mass. 101, 25 N.E. 46. 

< Conn., G.S., sees. 4907-4912 ; Ind., A.S., sees. 8693-8703 ; Mass., R.L., oh. 72, 
Bees. 7-14 ; N.Y., C.L., Ch. 13, sees. 15, 16. 



248 LAW OF THE EMPLOYMENT OF LABOR 

by which the public is deceived and the rightful users are made 
to suffer pecuniary loss. 1 The statutes on the subject have 
been generally held to be constitutional. 2 In the Illinois and 
Indiana cases cited, the same label was under consideration as 
that condemned in the courts of Pennsylvania ; 3 but it was said 
in these cases that the language was not an attack, but was de- 
fensive only. In some cases the question of class legislation 
was raised, but the courts ruled that the act was neither local, 
private, nor discriminatory, but merely allowed a legitimate 
statement as to the class of workmanship employed. Descrip- 
tive words are no proper part of a trade-mark, but their use 
will not invalidate an otherwise appropriate mark. 4 In opposi- 
tion to the point made by the Massachusetts court in the case 
of Weener v. Brayton, supra, it has been held that since such a 
label is a symbol of the reputation of the goods on which it is 
placed, it acquires the character of property, and is therefore a 
valid subject of legislation. 5 An international label was held 
not to be within the protection of a state law unless it was af- 
firmatively shown that it could properly be registered there- 
under ; 6 and the form of any label for which the protection of 
the law is sought must conform to the provisions of the statute. 7 

1 Carson v. Ury, 39 Fed. 777. See also Hetterman v. Powers, 102 Ky. 133, 43 
S.W. 180. 

2 Schmalz v. Wooley, 57 N.J. Eq. 303, 41 Atl. 939 ; Tracy v. Banker, 170 Mass. 
266, 49 N.E. 308 ; People v. Fisher, 50 Hun. 552, 3 N.Y. Supp. 786 ; Perkins v. 
Heert, 158 N.Y. 306, 53 N.E. 18 ; State v. Bishop, 128 Mo. 373, 31 S.W. 9 ; Cohn 
v. People, 149 111. 486, 37 N.E. 60 ; State v. Hagan, 6 Ind. App. 167, 33 N.E. 223 ; 
State v. Montgomery, 57 Wash. 192, 106 Pac. 771. 

3 McVey v. Brendel, supra. 
* People v. Fisher, supra. 

6 State v . Bishop, supra. 
6 State v. Hagan, supra. 
T Lawlor v. Merritt & Son, 78 Conn. 630, 63 Atl. 639. 



TRADE AND LABOR ASSOCIATIONS 249 

The use of a label not identical but misleading in appearance 
on a casual examination is a violation of a statute prohibiting 
the use of counterfeits or colorable imitations, 1 and it is as much 
an offense to use a genuine label without authority as to use an 
imitation thereof. 2 A statute prohibiting the use of a label 
without authority, or the use of a counterfeit label, was held not 
to make knowledge an ingredient of the offense, the act itself 
making the user liable ; 3 though it has been held that guilty 
knowledge must be shown, since nothing will be taken by way 
of intendment in the enforcement of a penal statute. 4 The 
statutes frequently penalize only the known or willful violation 
of the law, and where such is not shown, no penalty will attach, 
and circumstances may even warrant the remission of costs in 
the issue of an injunction against further use of the label. 5 A 
provision in a statute that the penalty to be adjudged against 
a violator of the law may be fixed by the complainant associa- 
tion and by it recovered in an action for debt amounts to usurpa- 
tion of the judicial function, depriving the defendant of property 
without due process of law, and is unconstitutional. 6 

Under this head may be mentioned the statutes of a few 
states 7 which require the union label to be placed on public 
printing. No decision of a court seems to have been made as 
to the constitutionality of such statutes, though they would 
obviously fall under the same condemnation as have ordinances 



1 Myrup v. Friedman, 112 N.Y. Supp. 1138. 

* Tracy v. Banker, supra. 

* Buela v. Newman, 31 N.Y. Supp. 449, 10 Misc. 460. 

* State v. Bishop, supra. 

6 United Garment Workers v. Davis, (N.J. Eq.) 74 Atl. 306. 

8 Cigar Makers' International Union v. Goldberg, 72 N.J.L. 214, 61 Atl. 457. 

7 Mont., R.C., sec. 254 ; Nev., C.L., sec. 1515. 



250 LAW OF THE EMPLOYMENT OF LABOR 

of cities to the same effect. 1 Such laws are condemned as class 
legislation, tending to the promotion of monopolies, and leading 
to unwarrantable expenditure of the public funds, even where 
the law does not require the award of contracts to the lowest 
responsible bidder. 

The right to wear the badge of a labor organization or to carry 
a union card is restricted to actual members by the statutes of 
a number of states. 2 On principle, such statutes would seem 
to fall fairly within the rule as to the right of the union label to 
protection, and to be valid as preventing fraud. It has been 
held, however that a statute forbidding the wearing of the 
badge of any organization except as permitted or provided by 
the constitution and by-laws of the same 3 was unconstitutional 
as delegated legislation, since the right was made dependent on 
other than a public law ; the act was also held void as discrim- 
inatory, in violation of the provisions of the fourteenth amend- 
ment of the federal Constitution. 4 

Section 117. Restrictive Combinations. Antitrust Laws. — 
Combinations of workmen may be condemned, or at least set 
outside of the protection of the law, on the ground that they are 
in restraint of trade. Their purpose to restrict employment to 
their own numbers or those in affiliation with them operates to 
exclude nonmembers from employment ; and the courts will 
not enforce by injunction or otherwise the contracts of mem- 
bers to continue as such or to observe the rules of the associa- 

1 Holden v. City of Alton, 179 111. 318, 53 N.E. 556 ; Marshall & Bruce Co. v. 
Nashville, 109 Tenn. 495, 71 S.W. 815 ; Atlanta v. Stein, 111 Ga. 789, 36 S.E. 832 ; 
Miller v. City of Des Moines, 143 Iowa 409, 122 N.W. 226. 

J Conn., Acts 1907, ch. 113 ; Ga M Acts 1899, p. 79 ; Mass., Acts 1909, ch. 514, 
sees. 31, 32 ; Minn., R.L., sec. 5053, etc. 

» Mont., Acts 1907, ch. 18. 

* State v. Holland, 37 Mont. 393, 96 Pac. 719. 



TRADE AND LABOR ASSOCIATIONS 251 

tion, or in any way guarantee the status of the organization or 
of a member (unless property rights are involved), on the ground 
that such judicial sanction of the regulations would be an un- 
justifiable interference with the freedom of contract and of 
trade. 1 If an association is essentially for the purpose of re- 
striction of output and of employment, and actively operates 
to impair the freedom of employers as well as restricting its 
own members, it may be disbanded as illegal; 2 or an injunction 
may issue against a combination to further a strike where the 
object of the strike is to enforce a closed-shop agreement. 3 

In some cases the language used in the consideration of com- 
binations of workmen indicates a purpose to apply the same 
rules to them as to business agreements ; 4 though in others a 
distinction is sharply drawn, the right of laborers and profes- 
sional men to combine to fix a price on their services being held 
lawful both at common law and under statutes generally. 5 It 

» O'Brien v. Musical M. P. & B. U., 64 N.J. Eq. 525, 54 Atl. 150. 

2 Kealey v. Faulkner, 18 Ohio S. & C. P. Dec. 498. 

» Reynolds v. Davis, 198 Mass. 294, 84 N.E. 457 ; Goldfield Consol. Mines Co. 
v. Goldfield Miners' Union, 159 Fed. 500. 

« Lohse Patent Door Co. v. Fuelle, 215 Mo. 421,114 S.W. 997. 

6 Rohlf v. Kasemeier, 140 Iowa 182, 118 N.W. 276. It has been said recently 
that "so far as economic principles are concerned, and so far as considerations of 
fairness and justice are involved, there is not a word to be said in favor of any 
scheme of legislation which condemns combinations of capital and at the same 
time encourages combinations of labor." (Eddy on Combinations, sec. 896.) 
Admitting the possibility of abuse of both classes of combinations, the author 
quoted assumes the necessity of regulation, both groups being important to the 
welfare of society and the one demanding the other as its correlative. Another 
writer (Cogley, Strikes and Lockouts) reaches the same conclusion, though he 
says that the employer undoubtedly has the advantage because he has the most 
means, which is merely "the good fortune of the one party and the hard luck of the 
other, and is not the fault of the law." The actual legislative attitude has had 
some attention, both as regards labor organizations in particular (sec. 110), and in 
relation to employed persons in general (sees. 3 and 4) ; and while the courts 



252 LAW OF THE EMPLOYMENT OF LABOR 

appears to be the rule, however, that where the question is 
one simply of the rights of employers to agree on the terms of 
the labor contract and the personnel of their employees, there 
is little if any difference between their rights and those of work- 
men. 

It may be broadly stated that "all combinations in restraint 
of trade are contrary to public policy and illegal unless they are 
for the reasonable protection, by reasonable and lawful means, 
of persons dealing legally with some subject matter of contract." * 
Each case must turn on its conformity or nonconformity with 
the terms of the above rule, and protestations of innocent pur- 
pose or of simple obedience to the rules and obligations of the 
association must be weighed against the actual effects of the 
acts done and the reasonably anticipated consequences of rules 
of the nature pleaded. A combination of laborers to prevent 
the introduction of labor-saving machinery, 2 or to secure the 
employment of members of the union only 3 (though man}' of 
the recent cases on this point seem to turn on the question of 
methods and the consequences to nonunion workmen, and hold 
the mere purpose of securing the employment of fellow-members 
lawful), or to compel all employees of several employers to join 
a particular union, 4 or to prevent the employment of others to 

have not uniformly recognized the constitutionality of differentiating statutes, 
there is at least room for effort to adjust the unequal economic conditions ad- 
mitted by the author last quoted and recognized in many judicial opinions, on 
the ground that it is better to adapt legal and economic rules and doctrines to 
existing facts than to insist on the doctrines and ignore the facts. 

1 Gatzow ». Buening, 106 Wis. 1, 81 N.W. 1003. 

2 Oxley Stave Co. v. Coopers' International Union, 72 Fed. 695. 

J Elder v. Whitesides, 72 Fed. 724 ; Gatzow v. Buening, supra ; Curran v. 
Galen, 152 N.Y. 33, 46 N.E. 297. 

* McCord v. Thompson-Starrett Co., 113 N.Y. Supp. 385. 



TRADE AND LABOR ASSOCIATIONS 253 

take the place of workmen out on strike, 1 or a combination to 
procure employees under contract to quit their employment, 2 
or, in general, a combination coming within the definition given 
below (sec. 118) of a conspiracy, is unlawful. 

Legislation directed to the operation of business agreements, 
commonly known as antitrust legislation, is found in many 
states and on the federal statute books. As noted in sec. 
Ill, some of these laws expressly exempt labor agreements from 
their application. A law prohibiting agreements to regulate 
the price of any commodity was held not to apply to labor, the 
court rejecting the view that labor can be classed as a com- 
modity, and holding further that combinations to advance wages 
are lawful. 3 The exception as to labor combinations in the 
antitrust law of Nebraska was declared unconstitutional by a 
federal court ; 4 this view was disapproved by the supreme 
court of the state, however, the law being held by it to be 
valid as enacted. 5 An Illinois statute that amended the anti- 
trust law of that state by excepting wage agreements therefrom 
was held by the supreme court of the state to be unconstitu- 
tional, 6 on the ground that the law was discriminatory, citing 
a similar conclusion of the Supreme Court of the United States 
as to a law of the same sort making exceptions of a different 
nature. 7 

An association whose by-laws restrict competition in bidding 

1 Union P. R. Co. v. Ruef, 120 Fed. 102. 

» Arthur v. Oakes, 63 Fed. 310, 11 CCA. 209. 

1 Rohlf v. Kasemeier, supra. 

* Niagara Fire Insurance Co. v. Cornell, 110 Fed. 816. 

* Cleland v. Anderson, 66 Nebr. 252, 92 N.W. 306. 

« People ex rel. Akin v. Butler St. Foundry Co., 159 111. 249, 66 N.E. 353. See 
also Eddy on Combinations, sees. 911, 912. 

* Connolly v. Pipe Co., 184 U.S. 540, 22 Sup. Ct. 431. 



254 LAW OF THE EMPLOYMENT OF LABOR 

for work and require purchases of supplies to be made only from 
dealers who conform to the rules of the association is in restraint 
of trade and violates a law prohibiting contracts and combina- 
tions to prevent or destroy full and free competition in produc- 
tion. 1 Any member of a combination, if acting singly and 
individually, could lawfully refuse to deal with any person or 
persons not meeting the conditions set by him for his customers 
or patrons, and no law which would infringe upon his freedom 
in that regard would be valid; but an act that is harmless 
when done by one may become a public wrong through concert 
of action, and may be prohibited or punished as a conspiracy 
if it is injurious to the public or to individuals against whom it 
is directed. 2 The fact that an agreement entered into by sev- 
eral strips them of their own freedom of action as individuals 
was mentioned in the case last cited as a further warrant for 
holding the combination to be one in restraint of trade within 
the purview of a statute prohibiting combinations of that na- 
ture ; the statute was also held to be constitutional. 

The federal antitrust act 3 declares illegal " every contract, 
combination in the form of trust or otherwise, or conspiracy, in 
restraint of trade or commerce," interstate or foreign. This 
act was held in an early case to apply to combinations of laborers 
no less than to those of capitalists, and the fact that the origin 
and general purposes of a combination were innocent and lawful 
in no wise lessens the illegality of acts that offend against the 
provisions of the statute. 4 In this case an effort to secure the 

1 Bailey v. Ass'n. of Master Plumbers, 103 Tenn. 99, 52 S.W. 853. 

2 Grenada Lumber Co. v. Mississippi, 217 U.S. 433, 30 Sup. Ct. 535 ; citing 
Callan v. Wilson, 127 U.S. 555, 8 Sup. Ct. 1301. 

8 Act of July 2, 1890, 26 Stat. 209, Comp. Stat., p. 3200. 

* United States v. Workingmen's Amal. Council, 54 Fed. 994 ; Affirmed 
(C.C.A.), 57 Fed. 85. 



TRADE AND LABOR ASSOCIATIONS 255 

employment of none but union men by the interruption of 
commerce by violent means was held to be a restraint of trade 
within the meaning of the act ; so also of a boycott against a 
connecting railway line, and a refusal to handle its cars until it 
should come to terms with the organization ; 1 and an injunc- 
tion will properly lie against officers of an organization who 
incite strikes in furtherance of a purpose condemned by the 
act. 2 The subject received an extensive discussion in its bear- 
ing on the subject of combinations of labor in the case just cited. 
This case was carried to the Supreme Court and there affirmed, 3 
though not on the grounds of a violation of the antitrust law, 
but on the broader ground of the control of the national gov- 
ernment over the transportation of the mails. 

It was stated in the opinion in the above case that there was 
no dissent from the opinion of the court below as to the scope 
of the act, but this declaration was not understood in a later 
case in an inferior court as upholding the applicability of the 
law to a case in which efforts to unionize a factory involved the 
boycotting of the product in various states to which shipments 
were customarily made, with the result that such shipments 
were largely reduced. The court in this instance held that the 
only points of interference were the diminished sales in each 
locality and the reduction of manufacture locally, neither of 
which were matters classifiable as interstate commerce and 
subject to federal control. 4 The Supreme Court of the United 
States, however, considered the question on appeal, 5 and held 

1 Waterhouse v. Comer, 55 Fed. 149. 

' United States o. Debs, 64 Fed. 724. 

« In re Debs, 158 U.S. 564, 15 Sup. Ct. 900. 

< Loewe v. Lawlor, 148 Fed. 924. 

s Same case, 208 U.S. 274, 28 Sup. Ct. 301. 



256 LAW OF THE EMPLOYMENT OF LABOR 

that the combined acts had for their purpose an interference 
with interstate commerce, that labor unions are in no wise 
exempt from the strictures placed by the statute on combina- 
tions in restraint of trade, and that a boycotting of goods sold 
chiefly in other states than that of manufacture, for the purpose 
of coercing the manufacturer into an agreement with the union, 
was repugnant to the statute. 



CHAPTER XII 



LABOR DISPUTES 



Section 118. Conspiracies. — The old common-law doctrine 
of conspiracy, which was by statute made to cover all labor 
combinations in Great Britain until within the past century, is 
frequently invoked to meet cases in which combinations are 
formed that are regarded as unduly interfering with business 
or property interests. Of practically the same nature and effect 
are certain prohibited combinations, not designated as con- 
spiracies, for the purpose of " willfully or maliciously injuring 
another in reputation, trade, business, or profession, by any 
means whatever." l It has been repeatedly declared that what 
one may lawfully do alone, many may do in combination ; 2 
though the better view is against the correctness of this asser- 
tion, unless properly qualified ; 3 but in general the fact of com- 
bination does not of itself suggest illegality. 

A conspiracy, however, is essentially illegal, being most 
commonly defined as a combination of two or more persons to 

1 Wis., A.S. sec. 4466a. 

2 Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N.W. 119; Lindsay v. Montana 
Federation of Labor, 37 Mont. 264, 96 Pac. 127; National Protective Ass'n. v. 
Cumming, 170 N.Y. 315, 63 N.E. 369; Cooke, Combinations, Monopolies, 
and Labor Unions, sec. 16. 

s Aikens v. Wisconsin, 195 U.S. 194, 25 Sup. Ct. 3 ; Arthur v. Oakes, 63 Fed. 
310, 11 CCA. 209; Buck's Stove & Range Co. v. American Federation of 
Labor, 35 Wash. L. Rep. 797, 70 Alb. L.J. 8 ; Pickett v. Walsh, 192 Mass. 572, 78 
N.E. 753 ; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997. 
8 257 



258 LAW OF THE EMPLOYMENT OF LABOR 

perform an illegal act, or effect an illegal purpose, or to accom- 
plish some purpose not in itself criminal or unlawful by criminal 
or unlawful means ; and a conspiracy to commit an offense may 
be more severely punished than the offense itself, under pro- 
vision of statute. 1 The matter of definition and penalty may 
be regulated by statute, and several states have provisions de- 
claring that labor agreements are not conspiracies ; 2 though 
such laws do not legalize the class of conduct embraced in the 
definition given above, and where there is a malicious or cor- 
rupt agreement to deprive another of his liberty or property, 
the law has been violated, regardless of these statutes ; 3 nor 
does the fact that a state has a statute on the subject of conspir- 
acy prevent common law actions in cases not falling within the 
purview of the statute. 4 

Conspiracies are classed as civil and criminal, the former 
giving rise to liability in damages to the person injured thereby, 
and the latter being punishable by the state as for any other 
offense. In criminal conspiracies the offense consists in the 
combination, and punishment will follow the proof of the con- 
spiracy without regard to the attainment of its ends, since the 
law regards the act of unlawful combination and confederacy 
as dangerous in itself to the peace and welfare of society; 5 while 
in civil conspiracies some damage to the complaining party 
must be shown. Any party thereto is liable for the conse- 

1 Clune v. United States, 159 U.S. 590, 16 Sup. Ct. 125. 

2 Cal., Sims' Pen. Code, p. 581 ; Md., P. G. L., Art. 27, sec. 33 ; Minn., R.L., 
sec. 4868 ; N.Y., C. L„ ch. 40, sec. 582, etc. 

8 State v. Glidden, 55 Conn. 46, 8 Atl. 890 ; Lucke v. Clothing Cutters, 77 Md. 
896, 26 Atl. 505 ; Arthur v. Oakes, supra- 

* State v. Dalton, 134 Mo. App. 517, 114 S.W. 1132. 

8 United States v. Cassidy, 67 Fed. 698 ; Clune v. United States, supra ; 
Arthur v. Oakes, supra. 



LABOR DISPUTES 259 

quences of unlawful combinations, though he personally may 
not have participated in the performance of the acts leading up 
to them ; * or even though no act whatever was done, if the 
conspiracy was criminal. 2 The fact that a civil recovery has 
been had is no bar to criminal proceedings, and vice versa* 

The statutes of a number of states require the performance of 
an overt act to establish criminal liability, but the performance 
of that act may still entail liability upon all, 4 and the act itself 
need not be criminal if the conspiracy was so and the act shows 
a purpose of carrying it out. 5 

No conspiracy can exist without more parties than one, so 
that a judgment for damages against one party to an alleged 
conspiracy, the other parties being cleared of the charge, is 
self-contradictory. 6 One need not be an original conspirator 
to become liable as such if he makes himself party to a con- 
spiracy with knowledge of the character of its acts and purposes 
or of their reasonable tendency, 7 and the innocent and lawful 
act of combining for mutual benefit passes into indictable con- 
spiracy when threats, intimidation, and violence are adopted as 
means of enforcing the demands of the associates on employers 
or third persons. Inasmuch as any conspiracy charged will 
usually operate in one or more of the methods commonly em- 
ployed by combinations in the prosecution of their ends, the 
subject will recur under the several topics, as strikes, boycotts, 
picketing, blacklisting, etc. 

i Toledo, etc., R. Co. v. Pennsylvania Co., 54 Fed. 730. 

1 Arthur v. Oakes, supra; State v. Buchanan, 5 Har. & J. (Md.) 317. 

s State v. Dalton, supra; Underhill v. Murphy, 117 Ky. 640, 78 S.W. 482. 

* U.S., R.S., sec. 5440. See Toledo, etc., R. Co. v. Pennsylvania Co., supra. 
« United States v. Gordon, 22 Fed. 250. 

• St. Louis S. W. R. Co. v. Thompson, 102 Tex. 89, 113 S.W. 144. 

7 Conkey v. Russell, 111 Fed. 417 ; ex parte Richards, 117 Fed. 658 ; Goldfield 
Consol. Mines Co. v. Miners' Union, 159 Fed. 500. 



260 LAW OF THE EMPLOYMENT OF LABOR 

The statutes declaring that labor agreements as to the con- 
ditions of employment are not conspiracies may contain the 
specific provision that the statute is to be construed as applying 
only to the combinations in question, and do not authorize the 
use of force or violence or threats thereof ; 1 or they may merely 
state that the orderly and peaceable assembling and coopera- 
tion of workmen for securing or maintaining desired conditions 
is not a conspiracy ; 2 nor is a refusal to work, following such an 
agreement, with the adoption and use of means to make the 
agreement effective. 3 

While these statutes, therefore, have the obvious intent of 
declaring such agreements lawful, they do not permit any vio- 
lent or coercive action, and if they attempted to do so, they 
would be unconstitutional and void as putting certain persons 
above and beyond a salutary law that governs all others ; 4 and 
while they prevent the prosecution as conspirators of those in 
combination, they do not take away the right of any individual 
injured by the combination to sue the responsible parties to 
recover damages. 5 The statute may itself provide (as in the 
Pennsylvania law cited above) that it does not prevent the 
prosecution and punishment, under any other law than that of 
conspiracy, of persons who, by force, threats, or menace, hinder 
any one from working as he may desire ; it would seem, how- 
ever, that such a provision is superfluous, since the use of the 
means indicated would doubtless take the agreement out from 
under the protection of the statute. 

1 Cal., Pen. Code, p. 581 ; Colo., A.S., sec. 1295. 

* Minn., R.L., sec. 4868 ; N. Dak., R.C., sec. 8770. 

» N.J., G.S., p. 2344, sec. 23 ; Pa., B. P. Dig., p. 484, sees. 72, 73. 

* Goldberg v. Stablemen's Union, 149 Cal. 429, 86 Pac. 406. 
■ Frank v. Herold, 63 N.J. Eq. 443, 52 Atl. 152. 



LABOR DISPUTES 261 

Of a somewhat different intent are laws prohibiting conspiracy 
against workingmen so as to prevent employment by intimidat- 
ing them, or by taking away or hiding their tools ; or by coerc- 
ing or threatening employers so as to lead to their discharge or 
nonemployment. 1 These statutes can hardly be said to do 
anything more than to declare the common law in its applica- 
tion to special classes of persons. 

Section 119. Strikes. — A strike may be defined as a pre- 
concerted cessation of work by employees. As it is usually for 
the purpose of procuring some concession from the employer, 
the statement that it is for such purpose is frequently made a 
part of the definition. 2 Inasmuch as every man has a right to 
leave service at pleasure, with liability in damages only if a 
contract is violated, 3 and without regard to reason or motive, 4 
it has been held that strikes are per se legal ; 5 and while this 
rule may be accepted as generally correct, it must be with the 
understanding that neither the purpose nor the method of the 
strike is unlawful. It is obvious that if a strike involved nothing 
more than the mere cessation of employment, initiated volun- 
tarily by the workmen and so continued, leaving the employer 
and third persons free to such course of conduct as they might 

1 Fla., G.S., sec. 3515 ; Minn., R.L., sec. 4867 ; Miss., Code, sec. 1084 ; 
N.Y., C. L., ch. 40, sec. 580. 

* For a fuller discussion of definitions see Martin, The Modern Law of Trade 
Unions, sec. 25. 

» Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753. The absence of contracts 
for a fixed period is assumed throughout this discussion, unless the point is 
specifically mentioned. 

* Booth v. Burgess, 72 N.J. Eq. 181, 65 Atl. 231 ; Ray croft v. Taintor, 68 Vt. 
219, 35 Atl. 53 ; National Prot. Ass'n. v. Cumming, 170 N.Y. 315, 63 N.E. 369 ; 
Cooley, Torts, p. 278. 

« Union P. R. Co. v. Ruef, 120 Fed. 102 ; Allis-Chalmers Co. v. Iron Molders' 
Union, 150 Fed. 155 ; National Prot. Ass'n. v. Cumming, supra. 



262 LAW OF THE EMPLOYMENT OF LABOR 

choose, many of the questions usually involved would not arise. 
No writ can issue to compel former employees to return to work, 
any more than can an order directing employers to reinstate 
discharged workmen. Such a situation, therefore, need claim 
no further notice. 

While the motive or purpose of the act of a single individual 
quitting work would not be made the subject of judicial inquiry, 
the fact of the concert of action of a number, if followed by dam- 
age, gives room for inquiry into the methods by which such 
concert was procured and maintained, as well as into the ends 
in view, 1 and if these are shown to involve coercion or intimida- 
tion, or an improper interference with the rights of individuals, 
employers or employees, or of the public at large, the necessity 
for legal or equitable intervention may appear. 2 If the object 
is the benefit of the members of the organization, the fact that 
incidental injury to others results creates no liability; 3 but if 
injury is the primary motive, and the possible benefit accruing 
to the members is remote and indirect, the strike will be de- 
nounced as illegal. 4 And even where an anticipated beneficial 
result is offered as a defense, the courts will not allow the per- 
petration of a wrong, since "no conduct has such an absolute 
privilege as to justify all possible schemes of which it may be a 
part ; " 5 nor do statutes legalizing labor combinations and 

» Aikens v. Wisconsin, 195 U.S. 194, 25 Sup. Ct. 3. 

« Plant v. Woods, 176 Mass. 492, 57 N.E. 1011 ; Brennan v. Hatters, 73 N.J. L. 
729, 65 Atl. 165 ; Allis-Chalmers Co. v. Iron Molders' Union, supra. 

8 National Fireproofing Co. v. Mason Builders' Ass'n., 169 Fed. 259 ; Allis- 
Chalmers Co. v. Iron Molders' Union, supra; National Protective Ass'n. v. 
Cumming, supra; Pickett v. Walsh, supra. 

* Berry v. Donovan, 188 Mass. 353, 74 N.E. 603 ; Curran v. Galen, 150 N.Y. 
33, 46 N.E. 297 ; Brennan v. Hatters, supra. 

6 Aikens v. Wisconsin, supra; see also Purvis v. United Brotherhood, 214 Pa. 
St. 328, 63 Atl. 585 ; State v. Stockford, 77 Conn. 227, 58 Atl. 769. 



LABOR DISPUTES 263 

strikes modify this rule in any wise. 1 The fact that workmen 
are in the employment of a receiver under the direction of a 
court does not affect their right to combine or to strike. 2 

Within the above rule, strikes against an employer to secure 
an increase of wages, reduction of hours, changes of shop rules, 
safer or more satisfactory physical conditions of employment, 
and the like, are obviously lawful ; and the employer is without 
remedy even though the strike threatens to result, or actually 
results, in his financial ruin, 3 or also in the inconvenience of the 
public. 4 The strike must, however, be actually justifiable, and 
while the strikers must have acted in good faith in striking for 
what seemed to them a justifiable cause, the courts will them- 
selves decide whether or not the purpose for which the strike 
was instituted amounts to a legal justification of it. 5 The chief 
difficulty in cases of this sort arises from the subsequent pro- 
ceedings by means of which the employees seek to regain employ- 
ment on the terms of their choice. Strictly speaking, em- 
ployees who have gone out on a strike or who have been dis- 
charged or locked out are as completely severed, in the eyes of 
the law, from all relations with their former employers as if the 
relation had never existed, and the relation can be resumed 
only by virtue of a mutual agreement de novo between the 
parties; and this is true whether the employment was under 
contract terminable at will, 6 or for fixed periods. 7 If this rule 

1 Arthur v. Oakes, 63 Fed. 310, 11 CCA. 209; Curran v. Galen, supra; 
Cumberland Glass Mfg. Co. v. Bottle Blowers, 59 N.J. Eq. 49, 46 Atl. 208 ; 
People ex rel. Gill v. Smith, 5 N.Y. Cr. Rep. 512, affirmed, 110 N.Y. 633, 17 N.E. 
871. ' Arthur v. Oakes, supra; In re Higgins, 27 Fed. 443. 

3 My Maryland Lodge v. Adt, 100 Md. 238, 59 Atl. 721. 

4 Arthur v. Oakes, supra. 8 De Minico v. Craig (Mass.), 94 N.E., 317. 
6 Union P. R. Co. v. Ruef, supra; Iron Molders' Union v. Allis-Chalmers Co., 

166 Fed. 45 (C.C.A.). T King v. W. U. Tel. Co., 84 S.C. 73, 65 S.E. 944. 



264 LAW OF THE EMPLOYMENT OF LABOR 

were carried to its logical conclusion, it would leave the employer 
free to continue his work as rapidly as new workmen could be 
secured who were willing to accept existing conditions. The 
courts, however, generally allow to the striking workmen the 
privilege of counseling with and persuading nonstriking or 
prospective employees not to work, so that the places may re- 
main unfilled until the employer grants the desired concession. 
(See sec. 120!) 

Strikes are frequently undertaken to affect the personnel of 
the working force, either by procuring the discharge of employees 
not in favor with a combination of their fellow-workmen or 
other organization, or by influencing the employer to reinstate a 
discharged workman or to employ certain individuals or classes 
of workmen. A strike to secure the reinstatement of a dis- 
charged workman would seem to be lawful, 1 and such a right 
is in close relation to the right to strike to procure the employ- 
ment of persons acceptable to a union. This rests on the ground 
that members of a union may lawfully agree not to work with 
any but fellow-members, and may carry out that agreement so 
long as they confine themselves to peaceable means ; 2 and this 
is true even though the employer is put to additional expense 
and inconvenience thereby, 3 or other workmen deprived of 
opportunities of employment; 4 but a strike to procure the 
discharge of a workman merely on the ground of personal dis- 
like, with no showing that his discharge will actually better the 

1 Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 ; National Protective 
Ass'n. v. Cumming, supra. Per contra, State v. Donaldson, 32 N.J. L. 151, 90 Am. 
Dec. 640. In none of these cases was this point directly in issue. 

• Mayer v. Journeymen Stonecutters' Ass'n., 47 N.J. Eq. 519, 20 Atl. 492. 

1 Pickett v. Walsh, supra; National Fireproofing Co. v. Mason Builders' 
Ass'n., supra. 

4 National Protective Ass'n. v, Cumming, supra. 



LABOR DISPUTES 265 

condition of the striking workmen, is unlawful, and the work- 
man interfered with by such action is entitled to damages. 1 
And it is said that a strike which has for its object not so much 
the advantages of the employment of the members of the union 
as the monopoly of the labor market will be regarded as unlaw- 
ful, and acts in its furtherance will be enjoined. 2 

The reasons assigned for putting such power into the hands 
of combinations of employees, obviously affecting the power of 
others to act according to their unrestricted choice, are various. 
In the Pickett case organized bodies of bricklayers and stone- 
setters refused to work for building contractors unless the latter 
would also give them the work of cleaning and pointing the 
walls. The workmen who had been employed for this part of 
the work sought to prevent the strike by asking for an injunc- 
tion against any form of interference with their employment. 
The employers favored the request, as they wished to divide 
the work for reasons of economy for themselves and because 
they claimed that the pointers did better work in their specialty 
than would be done by the stonesetters and bricklayers. The 
court held that as a matter of trade competition the latter work- 
men were justified in refusing to do any work on the building 
unless they were allowed to do it all ; and this though it added 
to the cost of work done by the contractors and absolutely de- 
barred the pointers, who could not lay brick or stone, from all 
employment, since such results are the natural and legitimate 
consequences of competition. This reasoning would support 
broadly the legality of strikes undertaken to secure the employ- 
ment of none but members of the association acting, and this 

1 De Minico v. Craig, supra. 

J Folsom v. Lewis (Mass.), 94 N.E. 316. 



266 LAW OF THE EMPLOYMENT OF LABOR 

is the attitude of the courts generally where the motive is ap- 
parently the benefit of the membership and not an attack on 
others to wantonly or maliciously deprive them of employment. 1 
Strikes against the employment of persons not members of 
unions have been justified also on the ground that the union 
members were warranted in using such means to protect them- 
selves from the consequences to themselves of the employment 
of unskillful or careless fellow-servants ; 2 so also if a work- 
man's "habits or conduct or character had been such as to 
render him an unfit associate in the shop for ordinary workmen 
of good character." 3 

Where a contemplated strike is of a lawful nature, it is not 
unlawful to notify employers or others affected of the intention 
to strike. In other words, it is not unlawful to foretell or 
threaten the performance of a lawful act. 

Strikes have been declared unlawful where the object was to 
enforce the payment of a fine imposed on the employer for not 
giving the union all his work, 4 since there is no privity of con- 
tract between the union and a nonmember, nor will any one be 
compelled to buy his peace or the right to do business by pay- 
ments to nongovernmental bodies. It has also been held that 
a strike is not lawful that has for its object the compulsory sub- 
mission to a committee of the employees of questions relating 
to individual employees and the enforcement of the conclusions 

1 Berry v. Donovan, 188 Mass. 353, 74 N.E. 603 ; National Protective Ass'n. 
v. dimming, supra; Gray v. Building Trades' Council, 91 Minn. 171, 97 N.W. 
663 ; Mayer v. Journeymen Stonecutters' Ass'n., supra. 

2 National Protective Ass'n. v. Cumming, supra. 

3 Berry v. Donovan, supra. 

* Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287 ; March v. Bricklayers' <fc 
Plasterers' Union, 79 Conn. 7, 63 Atl. 291 ; States Dalton, 134 Mo. App. 517, 114 
S.W. 1132. 



LABOR DISPUTES 267 

of such committees. 1 On the same principle a strike is unlaw- 
ful where the purpose is to enforce the payment of fines levied 
on workmen who do not belong to the union levying such fines. 2 
Neither can an employer be made the collector of a fine assessed 
by the union against a member employed by him. 3 

A strike to compel workmen to join a union by refusing to 
work with them until they joined has been declared unlawful, 
since, while actual competition will not be restrained, coercive 
acts or threats or wanton and malicious interference with busi- 
ness relations are unlawful. 4 It has been held, however, that 
strikes to procure the discharge of workmen who refused to join 
a union are lawful, 5 and it is clear that the same result as to 
both the nonunion workman and the employer may be reached 
by a concerted refusal to work with any but members of a union, 
which is seen to be legal if for purposes esteemed beneficial and 
not for purposes of persecution. 

It has been assumed, though the point was not in issue, that 
strikes in violation of contracts are unlawful ; 6 but since it is 
well-settled law that the violation of contracts entails only 
liability for damages resulting therefrom and that no enforce- 

1 Reynolds v. Davis, 194 Mass. 294, 78 N.E. 457. 

2 People v. Melvin, 2 Wheeler's Crim. Cases, 262. 

8 Hillenbrand v. Building Trades Council, 14 Ohio Dec. N.P. 628 ; Brennan v. 
Hatters, 73 N.J. L. 729, 65 Atl. 165. 

4 Plant v. Woods, 176 Mass. 492, 57 N.E. 1011 ; Erdman v. Mitchell, 207 Pa. 
79, 56 Atl. 327 ; O'Brien v. People, 216 111. 354, 75 N.E. 108 ; Curran v. Galen, 
152 N.Y. 33, 46 N.E. 297 ; State v. Dyer, 67 Vt. 790, 32 Atl. 814 ; Walker v. 
Cronin, 107 Mass. 555. 

6 Gray v. Building Trades' Council, supra; and see Commonwealth v. Hunt, 
4 Mete. (Mass.) Ill, 38 Am. Dec. 346. 

• State v. Stockford, 77 Conn. 227, 58 Atl. 769 ; Reynolds v. Davis, supra ; 
United States v. Haggerty, 116 Fed. 510; Goldfield Consol. Mines Co. v. Min- 
ers' Union, 159 Fed. 500. 



268 LAW OF THE EMPLOYMENT OF LABOR 

ment of a contract of personal service is possible, the grounds 
for such assumptions are not clear ; and it has been specifically 
held that no restraint can be put upon striking employees, even 
though by striking they violate their contracts. 1 

Strikes are sometimes undertaken by workmen who have no 
grievance against their employer directly, but who use the 
strike as a means of procuring his influence in the settlement of 
a dispute between another employer and his workmen. Such 
strikes have been designated as sympathetic strikes, and par- 
take of the nature of the boycott. The purpose is to obtain 
concessions by forcing third persons, who have no interest in 
the dispute, to force employers to grant the demands of their 
workmen, and strikes of this nature have been held to be un- 
lawful as interfering with trade freedom. 2 This view limits the 
right of organized labor to use the strike only as a means of 
influencing the persons with whom a trade dispute actually 
exists, without involving disinterested parties. It has been 
said that sympathetic strikes are nothing more than boycotts, 
and are illegal if boycotts are illegal ; 3 though another writer 
defends them on the ground of the "solidarity of interest" 
between the employees of the two employers. 4 The consensus 
of judicial opinion is, however, against the lawfulness of the 
sympathetic strike. 

Certain incidental consequences of strikes have received 



1 A. R. Barnes & Co. v. Berry, 156 Fed. 72 ; Arthur v. Oakes, 83 Fed. 310, 11 
CCA. 209 ; Knudsen v. Benn, 123 Fed. 637 ; Hopkins v. Oxley Stave Co., 83 
Fed. 912, 28 CCA. 99. 

> Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753 ; Reynolds v. Davis, supra. 

3 Tiedeman, State and Federal Control of Persons and Property, p. 440. As 
to the legality or illegality of boycotts, see sec. 122. 

4 Cooke, Combinations, Monopolies, and Labor Unions, pp. 120, 121. 



LABOR DISPUTES 269 

judicial consideration, and some of these may be briefly noted. 
A case of this sort is where the employees of a street railway 
company were on a strike and a passenger sued the company 
to recover damages for personal injuries received by him on one 
of its cars. The right of recovery was denied in this case, the 
court holding that there was no liability unless the company 
knew or ought reasonably to anticipate that it could not safely 
carry passengers by the exercise of the utmost care on its part. 1 
This accords with the ruling that telegraph and telephone 
companies are not liable for losses resulting from the failure to 
transmit messages where such failure is due to the acts of strik- 
ing employees. 2 So a law penalizing a railroad company for 
failure to furnish cars on demand is not applicable where such 
failure is due to strikes ; 3 and a strike clause in a contract of 
service is a valid defense in a suit for delay, where the delay 
actually results from a strike ; 4 but a delay caused by a volun- 
tary lockout by the employer affords no such defense. 5 

A suit by a property holder to recover damages from an em- 
ployer for injury to his property by the violent acts of striking 
employees is without grounds, since the employees are in no 
wise acting within the scope of their employment or by the 
authority of their employer in the commission of the unlawful 
acts complained of. 6 

A workman quitting service, alleging fear of injury from strik- 

1 Fewings v. Mendenhall, 83 Minn. 237, 86 N.W. 96. 

8 Sullivan v. W. U. Tel. Co., 82 S. C. 569, 64 S. E. 752, citing Jones on Telegraph 
and Telephone Companies, sees. 360, 361. 

3 Murphy Hardward Co. v. Southern R. Co., 150 N.C. 703, 64 S.E. 873. 

* The Toronto, 168 Fed. 386. 

« Mahoney v. Smith, 116 N.Y. S. 1091. 

• Shay v. American Iron & Steel Mfg. Co., 218 Pa. 172, 67 Atl. 54. 



270 LAW OF THE EMPLOYMENT OF LABOR 

ing fellow-workmen if he continues, will be regarded as breaking 
the contract of employment and liable for resultant damages, 
since the employer is not responsible for the cause of the breach, 
and does not himself effect it. 1 The effect of such a breach 
on the employee's right to recover any balance of wages pre- 
viously earned will be governed by the same rules as in other 
cases of violated contracts (see sec. 8). It has been held 
that where a workman accepted employment with one whose 
employees had gone on strike and had threatened violence to 
any one taking their places, the employer's failure to inform 
the new employee of the circumstances makes him liable for such 
injuries as the workman may receive as a result of thus igno- 
rantly accepting employment. 2 The laws of a few states direct 
employers advertising for workmen to give notice of strikes 
affecting them, if any. 3 In one aspect these laws come within 
the rule that the employee should be informed of hazardous con- 
ditions known to the employer and not patent (see sec. 68), 
though they may also express the same purpose as the Illinois 
statute which forbade free public employment offices to furnish 
names of applicants for employment to employers whose work- 
men were on strike (see sec. 108). Viewing the enactment 
from the latter standpoint, the Illinois supreme court declared 
unconstitutional the statute requiring notice of labor disputes, on 
account of its unequal application to employers and workmen 
differently situated, and to employers as compared with other per- 
sons making contracts. 4 A law of slight probable validity is one 

i Fisher v. Walsh, 102 Wis. 172, 78 N.W. 437. 

2 Holshouser v. Denver Gas & Electric Co., 18 Colo. App. 431, 72 Pac. 289. 

» 111., R.S., ch. 48, sec. 49; Mass., Acts 1910, ch. 445; Tenn., Acts 1901, ch. 
104. Assumed to be valid in Steinert & Sons Co. v. Tagen, (Mass.) 93 N.E. 
584. < Josma v. Western Steel Car & Foundry Co., (111.) 94 N.E. 945. 



LABOR DISPUTES 271 

of Minnesota which forbids employers to require as a condition 
precedent to employment any statement in writing as to the 
participation of applicants for employment in any strike. 1 

Statutes making municipalities liable for damage done by 
mobs and riots are constitutional, and are applicable in cases 
where the injury is to the property of the former employer of 
the striking workmen and is done by such workmen. 2 

The legality of strikes has been made the subject of legis- 
lation in a few states, either directly or by implication. Of the 
latter class are the laws declaring that labor agreements are not 
conspiracies (see sec. 118) ; and that it is not unlawful for two 
or more persons to unite or combine or agree in peacefully ad- 
vising or encouraging others to enter into combinations in re- 
lation to entering into, leaving, or remaining in the employment 
of any person or corporation. 3 Laws of this class do not legal- 
ize the commission or threat of acts of violence, nor do they 
restrict the power of the courts to enjoin such acts, their only 
effect being to declare legal certain combinations, but not au- 
thorizing coercive measures ; 4 and while declaring the com- 
binations not criminal, they do not take away the right of any 
one injured thereby to sue for damages. 5 

Another group of laws is one relating to strikes of railroad 
employees, by which it is forbidden to abandon trains or loco- 
motives in the furtherance of a strike at any other than the 

i Minn., R.L., sec. 1823. 

2 Pennsylvania Co. v. City of Chicago, 81 Fed. 317 ; Pittsburg, C. C. & St. 
L. R. Co. v. City of Chicago, 242 111. 178, 89 N.E. 1022. 

3 Colo., A.S., sec. 1295 ; N.J., Gen. St., p. 2344, sec. 23. 

* Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 ; Goldberg v. Same, 
149 Cal. 429, 86 Pac. 806 ; Cumberland Glass Mfg. Co. v. Glass Bottle Blowers, 
69 N.J. Eq. 49, 46 Atl. 208 ; Curran v. Galen, 152 N.Y. 33, 46 N.E. 297. 

* Frank v. Herold, 63 N.J. Eq. 443, 52 Atl. 152. 



272 LAW OF THE EMPLOYMENT OF LABOR 

point of destination or a division point. 1 These laws come 
within the reason of statutes penalizing the violation of con- 
tracts of employment when the probable consequence of the 
act is the jeopardizing of life or of valuable property ; 2 and 
while no case is at hand giving these statutes an authoritative 
construction, they are probably valid. 3 

Insurance against loss or injury to business by strikes presents 
chiefly, of course, the construction of the contract under existing 
circumstances. The acceptance and retention of premiums 
with full knowledge of existing disturbed conditions will bar the 
plea that the insured party did not give notice of such conditions. 
So also if replies to inquiries are ambiguous and the policy is 
nevertheless issued, the company cannot afterwards complain 
of such ambiguity in an effort to avoid the liability provided 
for in the policy. 4 

Section 120. Persuasion or Incitement to Strike. — Although 
it is generally held that the act of a workman in striking ter- 
minates absolutely his contract with his employer and leaves 
both parties without any relation or mutual status whatever, 5 
the fact remains that there exists in many minds a recognition 
of a sort of continuing relation which differentiates striking 
workmen in some degree from those never in the abandoned 

1 111., R.S., ch. 114, sec. 108 ; Kans., G.S., sec. 2374 ; N.Y. Acts 1903, ch. 257, 
sec. 62 ; Pa., B. P. Dig., p. 533, sec. 357. 

1 N.Y., Con. L., ch. 40, sec. 1910 ; Wash., Acts 1909, ch. 249, sec. 281. 

8 Toledo, etc., R. Co. v. Pennsylvania Co., 54 Fed. 746 ; Arthur v. Oakes, 83 
Fed. 310, 11 CCA. 209. 

4 Buffalo Forge Co. v. Mutual Security Co. (Conn.), 76 Atl. 995. 

5 Union P. R. Co. v. Ruef, 120 Fed. 102 ; Pierce v. Stablemen's Union, 156 Cal. 
70, 103 Pac. 323 ; Goldfield Consol. Mines Co. v. Goldfield Miners' Union, 159 
Fed. 500 ; Pope Motor Car Co. v. Keegan, 150 Fed. 148 ; Knudsen v. Benn, 123 
Fed. 636. 



LABOR DISPUTES 273 

employment. This is recognized within certain bounds by the 
courts as well, inasmuch as it is generally conceded that strikers 
may reason with other workmen or possible applicants for the 
vacated positions and seek to persuade them not to remain in 
or accept employment with their former employer. 1 It was 
even said in a concurring opinion in a recent case that, where a 
strike or a lockout has for its purpose the procuring of more 
desirable terms of employment from one of the parties to a 
labor contract, the act of striking or locking out does not com- 
pletely terminate the relationship between the parties. " The re- 
lationship is an anomalous one, yet distinctive, and of such nature 
as to secure to the parties certain correlative rights under which 
acts may be performed that would assume a different aspect 
if done by absolute strangers or in different circumstances.' ' 2 

The extent to which this rule may be carried is difficult to 
determine, since, while it seems clear that peaceable persuasion 
in connection with a lawful strike should be regarded as lawful, 
it may not be legally carried so far as to become vexatious and 
coercive, nor may the equal rights of all men in freely contracting 
or in seeking employment be ignored. A display of force, though 
with no use of actual violence, is unlawful, 3 and no one has the 
right to obtrude upon others to impose upon them arguments 
and persuasion to which they are unwilling to listen. 4 Strikers 

1 Iron Molders' Union v. Allis-Chalmers Co., 166 Fed. 45, 91 CCA. 631 ; 
Karges Furniture Co. v. Amalgamated Woodworkers' Union, 165 Ind. 421, 71 
N.E. 877; Wabash R. Co. v. Hannahan, 121 Fed. 563; Everett-Waddy Co. v. 
Typographical Union, 100 Va. 188, 53 S.E. 273 ; Jones v. E. Van Winkle Gin & 
Machine Works, 131 Gal. 336, 62 S.E. 236. 

1 Iron Molders' Union v. Allis-Chalmers Co., supra. 

* O'Neil v. Behanna, 182 Pa. St. 236, 37 Atl. 843. 

* Frank v. Herold, 63 N.J. Eq. 443, 52 Atl. 152 ; Southern R. Co. v. Machin- 
ists' Local Union, 111 Fed. 49 ; O'Neill v. Behanna, supra; Union P. R. Co. v. 
Ruef, supra; Goldfield Consol. Mines Co. v. Goldfield Miners' Union, supra. 

T 



274 LAW OF THE EMPLOYMENT OF LABOR 

may not go upon the premises of the employer to confer with his 
employees, since in doing so without his permission they become 
trespassers. 1 Intimidation must not be disguised in the as- 
sumed character of persuasion. Persuasion too emphatic or 
too long and persistently continued may itself become a nuisance, 
and its use a form of unlawful coercion. 2 

With the extensive and freely used power of organizations to 
influence the prospects of employment or of the formation and 
maintenance of business relations of every sort, it must be ad- 
mitted that a simple representation to the effect that a given 
course of conduct is looked upon with disfavor by an organiza- 
tion is of itself a potent influence, and often amounts to an 
interference with the free course of conduct on which the "prob- 
able expectancies" of business rest. 3 Such interference, there- 
fore, even if by simple persuasion, is not an absolute right, but 
demands justification for its exercise. Courts have given ut- 
terance to the statement that a wrongful motive cannot convert 
a legal act into an illegal one, 4 but the overwhelming consensus 
of opinion is to the effect that acts affecting injuriously or in any 
manner interfering with or embarrassing the course of employ- 
ment or business require justification in order to protect them 
from being actionable, however legal they may be merely as 
acts. 5 The question whether conduct is actionable necessarily 

» Webber v. Barry, 66 Mich. 127, 33 N.W. 289. 

a Otis Steel Co. v. Iron Molders' Union, 110 Fed. 49 ; O'Neil v. Behanna, supra. 

'State v. Donaldson, 32 N.J.L. 151, 90 Am. Dec. 640; Boutwell v. Marr, 71 
Vt. 1, 42 Atl. 607 ; Curran v. Galen, 152 N.Y. 33, 46 N.E. 297. 

4 Quinn v. Leathern, 85 L.T. 289 ; J. F. Parkinson Co. v. Building Trades 
Council, 154 Cal. 581, 98 Pac. 1027 ; State v. Van Pelt, 136 N.C. 633, 49 S.E. 177. 

6 Aikens v. Wisconsin, 195 U.S. 194, 25 Sup. Ct. 3 ; Loewe v. Lawlor, 208 U.S. 
274, 28 Sup. Ct. 301 ; Jersey City Printing Co. v. Cassidy, 63 N.J. Eq. 759, 53 Atl. 
230 : State v. Stockford, 77 Conn. 227, 58 Atl. 769 ; Reynolds v. Davis, 198 Mass. 



LABOR DISPUTES 275 

calls for determination on the merits of the individual case; 
and " justification may be found sometimes in the circumstances 
under which it is done, irrespective of motive, sometimes in the 
motive alone, and sometimes in the circumstances and motive 
combined." 1 

The problem of determining the boundary between persuasion 
of an allowable sort and that which will be condemned as co- 
ercive is therefore one of fact, and each case will be determined 
on its own surroundings. The courts will not decree all per- 
suasion an interference, "but where evidence presents such a 
case as to convince the court that the employees are being in- 
duced to leave the employer by operating upon their fears 
rather than upon their judgments or their sympathy, the court 
will be quick to lend its strong arm to his protection." 2 

Officials of labor organizations who are not fellow-workmen 
with the employees, and who have therefore no relation to the 
employers, may nevertheless counsel and advise with employees 
who are members of their organizations as to the advisability 
of striking, especially where no strike can take place without 
the vote and consent of the employees themselves ; 3 and if the 
officials are themselves authorized by the union to call or declare 
strikes in their discretion, it is not unlawful for them to so act. 4 

294, 84 N.E. 457 ; Huskie v. Griffin, 75 N.H. 345, 74 Atl. 595 ; Martin, The Mod- 
ern Law of Labor Unions, p. 47 ; Erie, Trade Unions, p. 20 ; Pennant, Trade 
Unions and Workmen, p. 39. This view is rejected by Cooke, Combinations, 
Monopolies, and Labor Unions, pp. 17-22, though he cites numerous cases 
which, he says, "seem, generally speaking, to uphold the view condemned in the 
text." i Plant v. Woods, 176 Mass. 492, 57 N.E. 1011. 

1 Rogers v. Evarts, 17 N.Y. Supp. 264. 

• A. R. Barnes & Co. v. Berry, 157 Fed. 883 ; Delaware, L. & W. R. Co. v. 
Switchmen's Union, 158 Fed. 541 ; Wabash R. Co. v. Hannahan, supra. 

4 Thomas v. Cincinnati N. O. & T. P. R. Co., 62 Fed. 803 ; Delaware, L. <fc 
W. R. Co. v. Switchmen's Union, supra. 



276 LAW OF THE EMPLOYMENT OF LABOR 

These rights do not extend, however, so far as to give liberty to 
incite strikes in the violation of contracts, even though the work- 
men might of themselves lawfully so strike. 1 Obviously, or- 
ganizers seeking to extend the ranks of organized labor and not as 
yet in association with the workmen could not so interfere, 2 
since it is on the basis of the community of interest of associated 
workmen and their mutual agreements as to representation and 
authority that the acts of counseling or directing must rest for 
their justification. 3 The officers charged with the control of 
strike funds may lawfully use them to pay the cost of trans- 
portation of workmen away from the locality in or at which a 
strike is in progress, or to offer to pay benefits to employees as 
an inducement to them to leave service ; since "the strike bene- 
fit fund is created by moneys deposited by the men with the 
general officers for the support of themselves and families in 
time of strike, and the court has no more control of it than it 
would have over deposits made by them in the banks." 4 It 
has been held that such payments may be made to persons who 
are not members of the organization contributing to the fund. 5 
Section 121. Picketing. — Picketing as an incident to 
strikes is a watching or espionage of the place of employment or 
the approaches thereto, or of the homes or lodging places of em- 

1 A. R. Barnes & Co. v. Berry, 156 Fed. 72 ; Reynolds v. Davis, 198 Mass. 
294, 84 N.E. 457; Wabash R. Co. v. Hannahan, supra; Arthur v. Oakes, supra; 
Jersey City Printing Co. v. Cassidy, supra. 

2 Hitchman Coal Co. v. Mitchell, 172 Fed. 963 ; Flaccus v. Smith, 199 Pa. St. 
128, 48 Atl. 894 ; United States v. Haggerty, 116 Fed. 510. 

'See National Protective Ass'n. v. Cumming, 170 N.Y. 315, 63 N.E. 369; 
Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753 ; Iron Molders' Union v. Allis- 
Chalmers Co., supra. 

* A. R. Barnes & Co. v. Berry, 157 Fed. 883. 

1 Everett- Waddy Co. v. Richmond Typographical Union, supra; Rogers v. 
Evarts, supra. 



LABOR DISPUTES 277 

ployees or possible employees, to procure information as to the 
progress of the strike and as to any means to make it effective. 
It has been defined as a watching and annoying, and while the 
word had not such a meaning in its original use, it is said that 
the definition has taken that form as the result of the conduct 
of those engaged in the work of picketing, and that the adoption 
of a term derived from the nomenclature of war is appropriate 
as the picket is an expression of hostility and is evidence that a 
state of war exists. 1 

The courts differ as to the lawfulness of picketing. Where 
it is in aid of an unlawful strike, or is accompanied by violence 
or by such a display of force or numbers as to intimidate work- 
men or the public, or to obstruct the highways or the approaches 
to places of business or employment, there is no difference of 
opinion. An insulting or menacing attitude may be no less in- 
timidating than an actual assault, and a request may be coercive 
by mere force of numbers. 2 The fact that pickets are appointed 
by an organization in no wise relieves them from personal re- 
sponsibility for their conduct toward third persons; and the 
fact that they are the representatives of a "mysterious and 
powerful organized authority" may be considered in determin- 
ing whether or not the picketing is intimidating and coercive in 
its nature and effect. 3 Picketing has been broadly condemned 

1 Otis Steel Co. v. Iron Molders' Union, 110 Fed. 698; Beck v. Teamsters' 
Protective Union, 118 Mich. 497, 77 N.W. 13 ; Jones v. E. Van Winkle Gin & 
Machine Works, 131 Ga. 336, 62 S.E. 236. 

* Iron Molders' Union v. Aliis-Chalmers Co., 166 Fed. 45, 91 CCA. 631 ; 
Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077 ; Ideal Mfg. Co. v. Ludwig, 149 
Mich. 133, 112 N.W. 723 ; Allis-Chalmers Co. v. Iron Molders' Union, 150 Fed. 
155. 

3 Karges Furniture Co. v. Amalgamated Woodworkers, 165 Ind. 421, 75 N.E. 
877; Allis-Chalmers Co. v. Iron Molders' Union, supra; Vegelahn v. Guntner, 
supra. 



278 LAW OF THE EMPLOYMENT OF LABOR 

as illegal on the ground that the fact of its establishment is 
evidence of an intention to annoy, embarrass, and intimidate ; 
and the position of the pickets, a few feet or a thousand feet 
from the picketed person's place of business, is immaterial, 
since the whole procedure is an unwarranted interference with 
the course of business. 1 Men may singly or jointly quit an 
employer, but they have no right, either singly or jointly, in the 
absence of legitimate interests to protect, to seek to ruin a man's 
business by gathering about the approaches to his place of busi- 
ness, and there by either persuasion, coercion, or force, prevent 
his patrons and the public at large from dealing with him ; 2 
and it has been said that there can be no such thing as a peace- 
ful picketing, 3 and that its maintenance is an injurious inter- 
ference in a matter in which the pickets had no rightful concern, 
and is unlawful. 4 "In its mildest form it is a nuisance, and to 
compel a manufacturer to have the natural flow of labor to his 
employment sifted by a self-constituted, antagonistic committee, 
whose very presence upon the highway for such purpose is de- 
terrent, is just as destructive of his property as is a boycott which 
prevents the sale of his product." 5 

The majority of cases seem to hold, however, that picketing 
is not of itself unlawful, and that the circumstances of each case 
must be considered. "There must be taken into account the 
size of the guard, the extent of their occupation of the street, 

1 A. R. Barnes & Co. v. Chicago Typographical Union, 232 111. 424, 83 N.E. 
940 ; Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 323 ; Beck v. Railway 
Teamsters' Protective Union, supra; Otis Steel Co. v. Iron Molders' Union, supra. 

1 Jensen v. Cooks' & Waiters' Union, 39 Wash. 531, 81 Pac. 1069. 

• Atchison, Topeka & Santa Fe R. Co. v. Gee, 139 Fed. 582 ; Union P. R. Co. v. 
Ruef, 120 Fed. 102. 

* Knudsen v. Benn, 123 Fed. 636. 

■ Geo.'Jonas Glass Co. v. Glass Bottle Blowers, 72 N.J. Eq. 653, 66 Atl. 953. 



LABOR DISPUTES 279 

and what they say and do. Taking every circumstance into 
account, if it appears that the purpose of the picketing is to in- 
terfere with those passing into or out of the works, or those 
wishing to pass into the works, by other than persuasive means, 
it is illegal. If the design of the picketing is to see who can be 
the subject of persuasive inducements, such picketing is legal." * 
It was said in the above case, however, that "a permanent 
guard in a public street in front of citizens' houses or a factory, 
is in itself a nuisance' ' ; and another court, while holding that 
peaceful picketing is at least theoretically possible, and is en- 
tirely lawful, said that is nevertheless "very much of an illu- 
sion." 2 

From the distinctions drawn by the supporting cases, and 
from the fact that in some of them it was found that the right to 
picket had been exercised so as to transcend lawful bounds, it is 
evident that the line between a picketing that the courts will 
allow and one that they condemn is easily and frequently trans- 
gressed in fact. Thus in the Allis-Chalmers case, the court 
suggested the adoption of a button by pickets, and their employ- 
ment in limited numbers. It was found that they were used in 
such numbers and in so threatening a manner as to depart en- 
tirely from the purpose of the court in making the suggestion, 
and it was said by the court in the course of its decision that 
peaceful picketing generally developed into strong, persistent, 
and organized persuasion and social pressure of every descrip- 

1 Cumberland Glass Mfg. Co. v. Glass Blowers' Ass'n., 59 N.J. Eq. 49, 46 Atl. 
208. See also Iron Molders' Union v. Allis-Chalmers Co., supra; Karges Furni- 
ture Co. v. Amalgamated Woodworkers, supra; Pope Motor Car Co. v. Keegan, 
supra; Mills v. U.S. Printing Co., 99 App. Div. 605, 91 N.Y. Supp. 185; Ever- 
ett-Waddy Co. v. Richmond Typographical Union, 105 Va. 188, 53 S.E. 273. 

2 Allis-Chalmers Co. v. Iron Molders' Union, supra. 



280 LAW OF THE EMPLOYMENT OF LABOR 

tion, making the condition of workmen disagreeable and in- 
tolerable, and that then "the condition has passed from that of 
the peaceful purpose of promoting the economic ends of the 
union men, and has entered the unlawful stage of malicious 
injury, without just cause or excuse, to rights just as important, 
and as fully protected by the constitution, as those on whose 
behalf these acts are committed.' ' The defense of the act rests 
on the fact that "the right to persuade new men to quit or 
decline employment is of little worth unless the strikers may 
ascertain who are the men that their late employer has per- 
suaded or is attempting to persuade to accept employment." 
It has been said that the right to persuade and to picket should 
be maintained, but with watchfulness on the part of the courts 
to determine whether or not duress is being used under the 
guise of persuasion, and intimidating obstruction and annoy- 
ance under that of picketing. 1 The Illinois supreme court 
rejects this as not a safe rule, since "it furnishes no fixed stand- 
ard of what is lawful. Any picket line must result in annoy- 
ance to both the employer and the workman, no matter what 
is said or done, and to say that the court is to determine by the 
degree of annoyance whether it shall be stopped or not would 
furnish no guide, but leave the question to the individual no- 
tions or bias of the particular judge." 2 This is condemning a 
rule of law because not of easy application, and the view ex- 
pressed in connection with the drawing of the line between 
persuasion and intimidation will doubtless command more 
general approval ; but it is clear from the number and weight 
of the opinions against it that the right of picketing is one of 

1 Iron Molders' Union v. Allis-Chalmers Co., supra. 

* A. R. Barnes <fe Co. v. Chicago Typographical Union, supra. 



LABOR DISPUTES, 281 

the more doubtful ones, and is to be exercised only within strict 
bounds, where at all tolerated, if it is to avoid prohibition. 
When it is connected with the boycott, picketing is generally 
condemned, 1 since it amounts to an effort to coerce, or to in- 
fluence by other means than free argument and persuasion. 
Where the boycott is held unlawful, of course acts in further- 
ance thereof are unlawful. 

An organization of workmen, not employees of the company 
whose works are being picketed, has no such right or interest 
in the matter of the maintenance of a picket as to warrant 
the granting of an injunction against the employer to prevent 
his taking measures against the maintenance of pickets at or 
about his plant. 2 It was said in this case that the grievance, 
if any, was that of the pickets themselves ; that the organiza- 
tion as an employer of pickets had failed to show any substan- 
tial pecuniary damage; and from all that appeared, a suit at 
law would afford ample redress against the financially responsible 
employer. Where a picket engages in unlawful acts which are 
accepted or approved by the labor union, it becomes respon- 
sible therefor, and an injunction will lie against it to prevent the 
further maintenance of such pickets. 3 

Statutes prohibiting picketing are found in a few states. 4 
The prohibitions of these laws run against going near or loitering 
about the premises where any lawful business is carried on, for 

1 Geo. Jonas Glass Co. v. Glass Bottle Blowers, supra; My Maryland Lodge 
v. Adt, 100 Md. 238, 59 Atl. 721. And see the following section. 

2 Atkins v. W. & A. Fletcher Co., 65 N.J. Eq. 658, 55 Atl. 1074. 

3 Geo. Jonas Glass Co. v. Glass Bottle Blowers, supra; Goldfield Consol. 
Min. Co. v. Goldfield Miners' Union, 159 Fed. 500 ; and see Union P. R. Co. v. 
Ruef, 120 Fed. 102. 

* Ala., Code, sec. 6395 ; Colo., Acts 1905, ch. 79. 



282 LAW OF THE EMPLOYMENT OF LABOR 

the purpose of influencing or inducing others not to have deal- 
ings with those engaged in such business ; or the picketing of 
any works or place of business for the purpose of interfering 
with or injuring any lawful business. A city ordinance prohib- 
iting picketing for the purpose of intimidation or of threaten- 
ing workmen was held valid ; 1 though it was said that very 
serious doubts exist as to the validity of a provision as to loiter- 
ing, similar to those in the statutes noted above. The supreme 
court of Missouri declared unconstitutional a city ordinance 
which prohibited lounging or loafing on street corners or other 
public places, in a case in which the ordinance was invoked to 
procure the arrest of pickets. 2 

Section 122. Boycotts. — The boycott has been defined as 
"a combination to harm one person by coercing others to harm 
him"; 3 or as "an organized effort to exclude a person from 
business relations with others by persuasion, intimidation, and 
other acts which tend to violence"; 4 or as "a confederation, 
generally secret, of many persons whose intent it is to injure 
another by preventing any and all persons from doing business 
with him through fear of incurring the displeasure, persecution, 
and vengeance of the conspirators"; 5 or, more briefly, as an 
illegal conspiracy in restraint of trade. 6 Much turns on the 
definition of the term, therefore, since as above defined the 
courts must of necessity condemn the boycott as unlawful. 

1 Ex parte Williams, (Cal.) Ill Pac. 1035. 

2 City of St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30. 

3 American Federation of Labor v. Buck's Stove & Range Co., 37 Wash. L. R. 
154. 

* Brace Bros. v. Evans, 5 Pa. Co. Ct. 163, 3 Ry. & Corp. L. J. 561. 
6 Crump v. Com., 84 Va. 927, 2 S.E. 620 ; Branson v. Industrial Workers of 
the World, 30 Nev. 270, 95 Pac. 354. 

« Walsh v. Ass'n. of Master Plumbers, 97 Mo. App. 280, 71 S.W. 455. 



LABOR DISPUTES 283 

"The law does not permit either employer or employee to use 
force, violence, threats of force, or threats of violence, intimi- 
dation, or coercion." * 

A broader definition has been offered, as that a boycott is 
"the act of a combination of persons in refusing to deal or in 
inducing others to refuse to deal with a third person," 2 thus 
practically eliminating the distinction between a boycott and 
the mere act of refusing to deal, either singly or in consultation. 
Another definition of the same nature is that it is "the with- 
drawal for a certain purpose of the patronage of the person or 
persons initiating it, and of as many others as he or they can 
induce to join them" ; 3 and in an opinion of the supreme court 
of New York it was said : "I think that the verb, Ho boycott/ 
does not necessarily signify that the doers employ violence, in- 
timidation, or other unlawful coercive means ; but that it may 
be correctly used in the sense of the act of a combination, in 
refusing to have business dealings with another until he re- 
moves or ameliorates conditions which are deemed inimical to 
the welfare of the members of the combination, or some of them, 
or grants concessions which are deemed to make for that pur- 
pose." 4 In the Lindsay case it was held that there is nothing 
unlawful in the act of union working men in withdrawing their 
patronage from the plaintiffs or from any other concern doing 
business with them, and that no fact of combination will make 
unlawful any act which an individual might lawfully do. "In 
other words, the mere combination of action is not an element 

> My Maryland Lodge v. Adt, 100 Md. 238, 59 Atl. 721. 
8 Cooke, Combinations, Monopolies, and Labor Unions, p. 50. 
s E. P. Cheney, 4 Pol. Sci. Q. 274. 

* Mills v. U. S. Printing Co., 91 N.Y. Supp. 185, 99 App. D. 605 ; adopted in 
Lindsay v. Montana Fed. of Labor, 37 Mont. 264, 96 Pac. 127. 



284 LAW OF THE EMPLOYMENT OF LABOR 

which gives character to the act. It is the illegality of the pur- 
pose to be accomplished, or the illegal means used in furtherance 
of the purpose, which makes the act illegal.' ' 1 In this case the 
court refused to continue an injunction against a boycott pros- 
ecuted largely by the distribution of a circular declaring the 
plaintiffs (wholesale and retail merchants) unfair, and calling 
on retailers and the public to withhold their patronage from 
them, asking them to do this "for your own protection and the 
protection of organized labor." The supreme court of Cali- 
fornia took a similar view in a case 2 involving efforts to unionize 
the plaintiff's business and the causing of loss through the ces- 
sation of trade relations with a number of former customers, 
leading in some instances to the violation of contracts. It was 
held that customers were entitled as a matter of fair dealing to 
know that the company had been declared unfair so that they 
would be able to avoid inconvenience and loss to themselves by 
breaking off their relations with the company, since no union 
workman would handle material purchased from it. A suffi- 
cient justification for the acts of the council, in so far as they 
were responsible for the violation of the contracts, was said to 
exist in the duty of the union to so warn the customers of the 
company. The situation was described as a bringing to bear 
upon the company the pressure of loss inflicted by third persons, 
with whom no controversy existed, by holding over those per- 
sons the risk of financial loss, thus compelling them to act against 
their own will. Such action was said to be nothing more than 
trade competition in an effort to secure the employment of union 

1 Citing Bohn Mfg. Co. v. Hollis, 54 Minn. 223,55 N.W. 119; Nat. Prot. 
Ass'n v. dimming, 170 N.Y. 315, 63 N.E. 369. 

* J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581, 98 Pac. 1027. 
See also State v. Van Pelt, 136 N.C, 633, 49 S.E. 177. 



LABOR DISPUTES 285 

workmen to the exclusion of all not associated with them, and 
on terms deemed satisfactory and advantageous to the members 
of the union. Since each member was entitled to so act, all 
might so act in combination. "It may be that the combina- 
tion of great numbers of men, as of great amounts of capital, 
has placed in the hands of a few persons an immense power, and 
one which, in the interest of the general welfare, ought to be 
limited and controlled. But if there be, in such combinations, 
evils which should be redressed, the remedy is to be sought, as 
to some extent it has been sought, by legislation. If the con- 
ditions require new laws, these laws should be made by the 
law-making power, not by the courts." 

These cases stand quite clearly marked off from the great 
body of decisions on the point involved, since the boycott is 
generally, by its very definition, put without the pale of those 
combined activities which the law will permit. In a tolerably 
recent case it was said that the distinction between an ordinary 
lawful and peaceable strike, entered upon to obtain concessions 
in the terms of the strikers' employment, and a boycott, is not 
a fanciful one. " Boycotts, though unaccompanied by violence 
or intimidation, have been pronounced unlawful in every state 
in the United States where the question has arisen, unless it be 
in Minnesota, and they are held to be unlawful in England;" 1 
and in a somewhat earlier case it was said that "no case has 
been cited where, upon a proper showing of facts, an unsuccess- 
ful appeal has been made to a court of chancery to restrain a 

1 Thomas v. Cincinnati, etc., R. Co., 62 Fed. 803. It may be noted that in 
the State of Minnesota, boycotting, which was allowed in the case of Bohn Mfg. 
Co. v. Hollis, 54 Minn. 223, 55 N.W. 1119, was held to be properly enjoined in the 
later case of Gray v. Building Trades Council, 91 Minn. 171. 97 N.W. 663. See 
also Ertz v. Produce Exchange, 79 Minn. 140, 81 N.W. 737. 



286 LAW OF THE EMPLOYMENT OF LABOR 

boycott." x While so sweeping a statement is not now pos- 
sible, it remains true that boycotts are by most courts held un- 
lawful even without public disturbance, physical injury, or direct 
threats of attacks on person or property; 2 since "the use of 
the word ' boycott ' is itself a threat, and the distribution of boy- 
cott notices is intended as a menace, intimidation, and coercion." 3 
Where the coercion consisted only in the enforcement of fines 
on members of the association conducting the boycott, it was 
still held to be unlawful, since it was no less an unlawful inter- 
ference with business because accomplished by the enforcement 
of coercive fines on members than if it had been accomplished 
by coercive measures against nonmembers to compel them to 
aid in the boycott ; and the fact that there was an initial agree- 
ment by all the members was not regarded by the court as war- 
ranting a finding that the continued withholding of patronage 
was also voluntary, when the failure to do so would have re- 
sulted in a heavy fine ; 4 the imposition of fines on nonmembers 
is unlawful. 8 

It is evident that it is the coercive feature of the boycott 
that discredits it so emphatically in the great majority of the 
courts. The mere refusal of individuals to deal would not be a 
violation of law, since individuals acting independently cannot 

1 Casey v. Cincinnati Typographical Union, 45 Fed. 135. 

2 Barr v. Essex Trades Council, 53 N.J. Eq. 101, 30 Atl. 881 ; March v. Brick- 
layers, etc., 79 Conn. 7, 63 Atl. 291 ; Shine v. Fox Bros. Mfg. Co., 156 Fed. 357, 86 
CCA. 311 ; Purvis v. Carpenters & Joiners, 214 Pa. St. 348, 63 Atl. 585. 

8 Brace Bros. v. Evans, supra; Beck v. Railway Teamsters' Protective Union, 
118 Mich. 497, 77 N.W. 13 ; Casey v. Cin. Typ. Union, supra, etc. 

* Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607 ; Martell v. White, 185 Mass. 255, 69 
N.E. 1085. 

6 Purington v. Hinchcliff, 219 111. 159, 76 N.E. 47 ; Burke v. Fay, 128 Mo. App. 
690, 107 S.W. 408 ; United States v. Raish, 163 Fed. 911. 



LABOR DISPUTES 287 

conspire nor can they intimidate the public acting alone. 1 "It 
has been decided, however, that while such action would not 
be unlawful by an individual, a combination and a conspiracy 
to accomplish the purpose would be an illegal act." 2 In the 
Hopkins case it was said that the definition of a boycott was 
not essential, since the evident purpose was, even if without 
violence, to so act by concert, force of numbers, and exciting 
the fears of the timid, as to compel many persons to surrender 
their freedom of action and submit to the dictation of others in 
the management of their private business affairs. "At common 
law every person has individually, and the public has also col- 
lectively, a right to require that the course of trade should be 
kept free from unreasonable obstruction ; " 3 nor can the 
ordinary methods of the boycott be justified as matter of trade 
competition ; 4 since the relations involved are not those of 
trade competitors engaged in rivalry for a market for their 
products ; inducing one's employees to leave his service, or 
interfering with the employment of workmen, for the purpose 
of crippling his business, where the organization is not itself 
engaged in any business, competitive or otherwise, and has no 
need of labor, its only object being to compel the employer to 

1 Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997. 

2 Oxley Stave Co. v. Coopers' International Union, 72 Fed. 695, citing Arthur 
v. Oakes, 63 Fed. 310 ; affirmed in Hopkins v. Oxley Stave Co., 83 Fed. 912, 
28 CCA. 99 ; see also Lohse Patent Door Co. v. Fuelle, supra. 

3 Erie, Trade Unions, cited with approval in Loewe v . Lawlor, 208 U.S. 274, 
28 Sup. Ct. 301 ; Purington v. Hinchcliff, supra; Jersey City Printing Co. v. 
Cassidy, 63 N.J. Eq. 759, 53 Atl. 230 ; Branson v. Industrial Workers of the World, 
supra, etc. 

4 March v. Bricklayers, etc., supra; George Jonas Glass Co. v. Glass Bottle 
Blowers, 72 N.J. Eq. 653, 66 Atl. 953 ; My Maryland Lodge v. Adt, 100 Md. 
238, 59 Atl. 721 ; per contra, J. F. Parkinson Co. v. Building Trades Council, 
supra. 



288 LAW OF THE EMPLOYMENT OF LABOR 

concede the desired terms to the organization, is said not to be 
the competition which the law recognizes or upholds. Nor is 
the publication of boycott notices within the protection of the 
right of free speech and a free press, 1 since with the right of 
free speech there is a guarantee of other rights and liberties, and 
it is a maxim of jurisprudence that each one must so use his own 
rights as not to infringe upon the rights of another ; 2 and it 
has been said that it would be strange indeed if the right of free 
speech could be used to sustain the carrying out of an unlawful 
and criminal conspiracy. 3 It has been contended against this 
view that the restraint of publication cannot be effected by 
the courts, since courts will not interfere with the publication 
of a libel, but will leave the parties to their freedom of action, 
subject to liability for the consequences. 4 But "there is a 

1 Loewe v. California State Fed. of Labor, 139 Fed. 71 ; Crump v. Com., 84 
Va. 927, 6 S.E. 620 ; Shine v. Fox Bros. Mfg. Co., supra; Beck v. Ry. Teamsters, 
Prot. Union, supra; My Maryland Lodge v. Adt, supra; Buck's Stove & Range 
Co. v. American Fed. of Labor, 35 Wash. L. R. 797 ; Huttig Sash & Door Co. v. 
Fuelle, 143 Fed. 363 ; and see Loewe v. Lawlor, supra. 

2 Jordahl v. Hayda, 1 Cal. App. 696, 82 Pac. 1079. "While our republican 
government guarantees the right to pursue one's own happiness, yet that gov- 
ernment is charged with the duty of protecting others than appellant in the 
pursuit of their happiness, and hence the inalienable right to pursue one's own 
happiness must necessarily be subject to the same right in all others. Hence, 
when that right is asserted in such a manner as to conflict with the equal right 
to the same thing in others, it is not an inalienable right at all, but is a wrong." 
Townsend v. State, 147 Ind. 624, 47 N.E. 19. 

3 Thomas v. Cincinnati, etc., R. Co., 62 Fed. 803. 

* Marx & Haas Co. v. Watson, 168 Mo. 135, 67 S.W. 391 ; Lindsay v. Montana 
Fed. of Labor, supra. In the former case it was said that there was no authority 
under the constitution for a distinction between proceedings to enjoin the pub- 
lication of a libel and one to enjoin publications of any other sort, however in- 
jurious. "No halfway house stands between prevention and absolute freedom. 
. . . The two ideas, the one of absolute freedom to say, write, or publish what- 
ever he will on any subject, coupled with the responsibility therefor, and the 



LABOR DISPUTES 289 

clear distinction between suits to enjoin the publication of a 
libel, and one to restrain acts to intimidate persons from dealing 
with another. In the one, when the acts complained of consist 
of such misrepresentations of a business that they tend to its 
injury and damage to its proprietor, the offense is simply a libel ; 
and in this country the courts have with great unanimity held 
that they will not interfere by injunction, but that the injured 
party must rely upon his remedy at law. On the contrary, 
when the attempt to injure consists of acts or words which will 
operate to intimidate and prevent the customers of a party from 
dealing with him, or laborers from working for him, the courts 
have, with nearly equal unanimity, interposed by inj unction.' ' i 
A distinction is sometimes drawn between what are classed 
as primary and secondary boycotts. In the former, the action 
is directly against the offending employer, the members of the 
organization simply withholding their patronage as laborers or 
purchasers, and inducing their fellows to do the same. The 
mere withholding of patronage or refusal to trade is not unlaw- 
ful, 2 and the announcement or publication of such a purpose is 
within the rights of the persons agreeing together, even though 

other idea of preventing any such free speech, free writing, or free publication, 
cannot coexist." The fact that the defendants were without funds or property 
that could be attached in a damage suit was said not to affect the situation, 
though it left the plaintiff company open to ruinous attacks with no possibility 
of recovery or redress. This case was commented on adversely in Rocky 
Mountain Tel. Co. v. Montana Fed. of Labor, 157 Fed. 821 ; and see Lohse 
Patent Door Co. v. Fuelle, supra. 

1 Coeur d'Alene Consol. Min. Co. v. Miners' Union, 51 Fed. 260 ; and see 
Beck v. Railway Teamsters' Union, supra; Casey v. Cincinnati Typ. Union, 45 
Fed. 135 ; Gray v. Building Trades Council, supra. 

2 Toledo, etc., R. Co. v. Penna. Co., 54 Fed. 730; State v. Glidden, 55 Conn. 
46, 8 Atl. 890 ; Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 323 ; Hey ». 
Wilson, 232 111. 389, 83 N.E. 928. 



290 LAW OF THE EMPLOYMENT OF LABOR 

it results in the injury of the person against whom the acts are 
directed. 1 And it will follow that persons freely joining in such 
withholding of business intercourse will not by their acts incul- 
pate either themselves or the original actors. But such is not 
the usual course of the boycott ; and indeed the definitions usu- 
ally adopted do not cover such acts, but are applicable only to 
the second class, or the so-called secondary boycotts (sometimes 
called compound boycotts), which are generally understood to 
mean combinations to harm one person by coercing others to 
harm him, as already set forth above. Exceptions to the 
practically uniform declaration as to the illegality of such 
boycotts are to be found where the employer extends or 
seeks to extend his activities by combinations with others 
of his class. Thus where an employer whose men are on 
strike sends material to be worked up by other employers, 
it is justifiable for sympathizers with the original strikers to 
withhold service from these other employers for the purpose of 
inducing them to refrain from dealing with him, and so seek to 
isolate him from business. "To whatever extent employers 
may lawfully combine and cooperate to control the supply and 
conditions of work to be done, to the same extent should be 
recognized the right of workmen to combine and cooperate to 
control the supply and the conditions of the labor that is nec- 
essary to the doing of the work." 2 The supreme court of 



1 Gray v. Building Trades Council, supra; People v. McFarlin, 89 N.Y. Supp. 
597, 43 Misc. 591 ; Pierce v. Stablemen's Union, supra. 

2 Iron Molders' Union v. Allis-Chalmers Co., 166 Fed. 45, 91 CCA. 631. See 
also Sinsheimer v. United Garment Workers, 77 Hun, 215, 28 N.Y. Supp. 321, 
where relief was denied an employer who was held not to have "come into court 
with clean hands," having himself employed methods similar to those of which 
he complained. 



LABOR DISPUTES 291 

California " recognizes no substantial distinction between the 
so-called primary and secondary boycott," permitting strikers 
not only to withhold their own patronage, but also, ' ' by threat 
of like boycott, to coerce others into doing so." However, it 
held illegal any act which tends to impair the right of free action 
by individuals by means passing beyond moral suasion and 
playing by intimidation upon the physical fears. 1 A dissent- 
ing opinion in the Pierce case pointed out what is no doubt a 
fatal weakness in the position taken by the majority, contend- 
ing that the use of any means constituting duress, menace, or 
undue influence would render the boycott unlawful. "Whether 
this coercion or compulsion comes from fear of physical violence, 
as in the case of picketing, or from fear of financial loss, as in 
the 'secondary boycott/ or from fear of any other infliction, is, 
in my opinion, immaterial, so long as the fear is sufficiently 
potent to control the action of those upon whom it is cast." 

In a few states boycotting is forbidden by statute, the term 
" boycott" being used for the most part without definition; 2 
while in two other states concerted refusal to trade with dealers 
or manufacturers, or concerted action to interfere with their 
business, is made an offense. 3 The effect of these statutes is 
slight, since they are little if any more than a declaration of the 
rules of the common law. "Neither at common law nor under 
statutes modifying the common law doctrine is it lawful for 
workmen to combine to injure another's business by causing 
his employees to leave his service by intimidation, threats, 

1 Pierce v. Stablemen's Union, supra; approving Parkinson v. Building Trades 
Council, supra, and citing as a supporting case Lindsay v. Montana Federation 
of Labor, supra. 

2 Ala., Code, sec. 6396 ; Colo., Acts 1905, ch. 79 ; 111., Acts 1905, ch. 38. 

3 Ind., A.S., sec. 3312m ; Texas, Acts 1903, ch. 94. 



292 LAW OF THE EMPLOYMENT OF LABOR 

molestation, or coercion." l They have the effect, however, 
of declaring the policy of the state in regard to any possible 
departure from the rule laid down. 

Besides the statutes prohibiting boycotting, a number of 
statutes have been referred to in boycott cases as violated by 
the acts complained of. Thus a statute of, Wisconsin, 2 which 
penalizes combinations for the purpose of willfully or maliciously 
injuring the trade or business of another, was held to be con- 
stitutional and applicable in a case of a combination of a number 
of managers of newspapers to boycott a rival publisher. 3 The 
legislature was held to have the power to make the question of 
motive a material one ; nor can the right to punish malicious acts 
be denied because they are to be followed and worked out by 
conduct which might have been lawful if not preceded by such 
acts. This corresponds to the principles controlling in the 
doctrine of conspiracy, whether under statute or common law. 4 
A similar statute of New York 5 was held to have like applica- 
tion in a boycott case in which there was neither violence nor 
threat of violence, where the combination was against builders 
who should buy materials of any dealer not approved by the 
union. 6 

The federal antitrust act 7 was made the basis of an action 
against a labor organization which had largely reduced the sales 

1 8 Cyc. 639, cited with approval in Branson v. Industrial Workers of the 
World, supra. 2 A.S., sec. 4466a. 

8 Aikens v. Wisconsin, 195 U.S. 194, 25 Sup. Ct. 3. 
* Sec. 118. And see Purington v. Hinchcliff, supra. 

8 Penal Code, sec. 168, subd. 5. 

9 People v. McFarlin, supra. See also Branson v. Industrial Workers of the 
World, supra, where a boycott was undertaken to compel an employer to union- 
ize his plant, the boycott being classed as a criminal conspiracy under sec. 4751, 
C.L. of Nevada. 7 26 Stat. 209, U.S. Comp. St., p. 3200. 



LABOR DISPUTES 293 

of the complainant's products by boycotts in various parts of 
the United States, and the court found that^there was a punish- 
able combination or conspiracy to interfere with trade or com- 
merce among the several states, as prohibited by the statute. 1 

Another federal statute that has been invoked is the provision 
forbidding attempts to defraud by the use of the United States 
mails. 2 In this case a fine was assessed against a manufactur- 
ing company by a union because of a refusal of demands to 
employ only union workmen. A boycott was declared against 
the company's products and notice thereof was mailed to its 
customers. This was held to be a violation of the statute, 
whether viewed as a means of inducing the payment of the fine 
to escape the boycott, or as a means of maintaining the boycott 
to the injury of the complainant's business. 3 

Section 123. Blacklists. — A blacklist is in brief a list of 
persons marked out for unfavorable discrimination in business 
or social relations. As the term is generally used, it applies to 
lists kept by groups or associations of employers for their mutual 
information as to workmen to whom employment will be re- 
fused on the basis of certain facts or alleged facts stated or 
assumed in connection with the placing of the names on the 
lists. A mere exchange of information, leaving each employer 
free to act on his own judgment in the case, is not, in the absence 
of statute, illegal. 4 It has already been stated that the giving 

1 Loewe v. Lawlor, 208 U.S. 274, 28 Sup. Ct. 301. See also Buck's Stove 4 
Range Co. v. American Fed. of Labor, 37 Wash. L. R. 822. 

2 R.S., sec. 5480, U.S. Comp. St., p. 3696. 
» United States v. Raish, 163 Fed. 911. 

« Willis v. Muscogee Mfg. Co., 120 Ga. 597, 48 S.E. 177 ; Boyer v. Western 
Union Tel. Co., 124 Fed. 246 ; Wabash R. Co. v. Young, 162 Ind. 102, 69 N.E. 
1003 ; Baker v. Ins. Co. (Ky.) t 64 S.W. 913. 



294 LAW OF THE EMPLOYMENT OF LABOR 

of recommendations or clearance cards at the termination of 
employment is not obligatory on the employer (sec. 14) ; but 
in any information which an employer offers he must avoid 
perversion of facts, as he will be liable for false or unfair state- 
ments concerning his workmen. 1 The same is true as to state- 
ments made maliciously or for purposes of wrongful interference 
with the relation of employer and employee; and where it 
appears that one is blacklisted " without cause or provocation/' 
a suit for damages will lie if it is shown that the person so black- 
listed was thereby cut off from opportunity for employment, to 
his injury. 2 

It has been said that a discharged employee cannot recover 
damages against one blacklisting him and so procuring his dis- 
charge, even though the act was malicious, unless there was co- 
ercion or deception, causing the discharge against the will or 
contrary to the purpose of the employer, 3 but this view is not in 
harmony with what appears to be the better and more common 
opinion; 4 and where a workman is blacklisted by a former 
employer, and others in association with the employer refuse 
employment because of the information given, the agreement 

1 Willis v. Muscogee Mfg. Co., supra; Hundley v. Louisville & N.R. Co., 105 
Ky. 197,48 S.W. 429 ; St. Louis S.W.R. Co. v. Hixon (Tex. Civ. App.), 126 SW. 
338. See also Davis v. New England R. Pub. Co., 203 Mass. 470, 89 N.E. 565. 
(This case involved the omission of a firm name from a list of all local " repu- 
table express companies.") 

* Mattison v. R. Co., 3 Ohio Dec. 526 ; Willner v. Silverman, 109 Md. 341, 71 
Atl. 962; Hundley v. Louisville & N. R. Co., supra; Rhodes v. Granby Cotton 
Mills (S.C.), 68 S.E. 824 ; see also Willett v. Jacksonville, etc., R. Co. (U.S. C. 
C, 1896, S. D. of Florida) in which the plaintiff obtained judgment in the 
amount of $ 1700 for loss of employment with another company on account of 
a letter written by his former employer. 

3 Baker v. Ins. Co. (Ky.), 67 S.W. 967. 

4 Joyce v. Great Northern R. Co., 100 Minn. 225, 110 N.W. 975; and cases 
in note 2, supra. 



LABOR DISPUTES 295 

will be condemned as a conspiracy if the circumstances show it 
to be injurious and without warrant in fact. 1 

A number of states have statutes prohibiting blacklisting. 2 
The constitutionality of these statutes has been maintained, 
their purpose being to protect employees in their natural and 
constitutional right to sell their labor and acquire property. 3 
The Indiana statute refers only to the blacklisting of discharged 
employees, and is therefore held not to be applicable to cases 
where one voluntarily left service ; 4 while in construing the 
Minnesota statute, which names both those who leave volun- 
tarily and those who are discharged, the court said that the 
fact that an employee left his place voluntarily does not give the 
employer the right to prejudice his employment elsewhere, 
and that it was not a sufficient answer that the employer may 
have cause for making the statement, or that it may be to the 
mutual advantage of all employers in an association, since if 
such were the facts in the case, they would not bar the action 
but would be available only as a matter of defense. 5 

Section 124. Interference with Employment, Intimidation, 
etc. — Not falling specifically under any of the foregoing heads 
and involving forms of collective action, thus differentiating 
them in some respects from the acts of individuals already 
considered (sec. 15), there are yet to be noticed some forms of 

1 Rhodes v. Granby Cotton Mills, supra. (Plaintiff was blacklisted as a 
striker, and so published, although it was clearly shown that he was not.) 

2 Ala., Code, sec. 6398; Conn., Acts 1909, ch. 153; Ind., A.S., sec. 7076; 
Minn., R.L., sec. 5097 ; N.C., Acts 1909, ch. 858 ; U.S., 30 Stat. 424, Comp. L. f 
p. 3205. 

3 State v. Justus, 85 Minn. 279, 88 N.W. 759 ; St. Louis S. W. R. Co. v. Hixon, 
supra; Joyce v. Great Northern R. Co., supra. 

4 Wabash R. Co. v. Young, supra. 
8 State v. Justus, supra. 



296 LAW OF THE EMPLOYMENT OF LABOR 

interference with the employment of labor or the conduct of 
business by methods which the law does not sanction. It has 
been seen that the courts will take note of injuries inflicted or 
threatened where they follow the unwarranted and improper 
exercise of such powers as are possessed by a collective body, 
even though there be neither fraud nor coercion by violent 
means ; and the unjustifiable interference by way of persuasion 
or the enticement of workmen, involving the violation of a 
contract not to become members of a union, has been held to 
entitle an employer to an injunction against members of a 
labor union who were seeking to unionize his plant ; 1 but where 
such a complaint is made, and it appears that the employees 
are in fact members of the association complained of, the right 
of officials to confer with their membership, and the right of 
workmen to act singly or collectively in the matter of seeking 
improved conditions of employment, will operate to prevent 
the issue of an injunction against counseling and advising on 
such subjects. 2 

Employees who are members of a union may take the initia- 
tive and procure the restraint of a rival union which seeks to 
procure their discharge and the employment of no others than 
members of such rival union. 3 The contrary view was taken in 
a case in which it was said that the object of the rival union to 
secure employment for its own members was sufficient justifi- 
cation for acts leading to the discharge of the complainants, 
though there was a strong dissenting opinion. 4 In this case the 

1 Flaccus v. Smith, 199 Pa. St. 128, 48 Atl. 894; Hitchman Coal Co. v. Mitchell, 
172 Fed. 963. » Wabash R. Co. v. Hannahan, 121 Fed. 563. 

• Plant t>. Woods, 176 Mass. 492, 57 N.E. 1011 ; Erdman v. Mitchell, 207 Pa. 
St. 79, 56 Atl. 327. 

* National Protective Asa'n. v. dimming, 170 N.Y. 315, 63 N.E. 369. 



LABOR DISPUTES 297 

majority of the court seems to have lost sight of the rule of law 
that one man's rights end where another's begin. "An inter- 
ference by a combination of persons to obtain the discharge of a 
workman because he refuses to comply with their wishes, for 
their advantage, in some matter in which he has a right to act 
independently, is not competition." 1 The right to seek em- 
ployment is an inherent one, and an association's noninter- 
ference with a workman in the exercise of that right is in no sense 
a ground for claiming that such an association had protected 
him in his employment or had conferred any legal benefit upon 
him, since it had no right to interfere with him in this respect ; 2 
and an unwarranted expulsion of a member, leading to his dis- 
charge from employment, will support an action for the recovery 
of damages for causing the discharge. 3 It has also been held 
that a labor union maybe enjoined from the expulsion of mem- 
bers in a manner intended to improperly influence their free 
action in the matter of employment, where such expulsion is a 
part of a number of intimidating and unlawful acts. 4 An action 
for damages will lie where a nonunion workman is shown to be 
maliciously deprived of employment by reason of the action of 
a labor organization ; 5 so also if the discharged workman was 

* Berry v. Donovan, 188 Mass. 353, 74 N.E. 603. 

* Levin v. Cosgrove, 75 N. J.L. 344, 67 Atl. 1070. 

' Campbell v. Johnson, 167 Fed. 102, 92 CCA. 554 ; Brennan v. United Hat- 
ters, 73 N.J.L. 729, 65 Atl. 165. 

* Connett v. United Hatters, 76 N.J. Eq. 202, 74 Atl. 188. 

6 Curran v. Galen, 152 N.Y. 33, 46 N.E. 297 ; Perkins v. Pendleton, 90 Me. 
166, 38 Atl. 96 ; Berry v. Donovan, supra. In the Curran and Berry cases the 
discharge was in consequence of contracts with employers to employ only mem- 
bers of unions, resulting in the discharge of plaintiffs from employment. In the 
case of Perkins v. Pendleton, the court said : "Merely to induce another to leave 
an employment, or to discharge an employee, by persuasion or argument, however 
whimsical, unreasonable, or absurd, is not, in and of itself, unlawful, and we do 



298 LAW OF THE EMPLOYMENT OF LABOR 

a member of another union, 1 the rule of law being that any 
malicious interference with the contract relation will ground 
an action if damage ensues. 2 Where the action of a union not 
only interferes with the employment of the former members, 
expelled without just cause, but also seeks to control their con- 
duct in matters of public duty, an added reason exists for re- 
straint against further interference, while damages will be al- 
lowed for the loss of employment. 3 

The interference complained of may be of a more general sort, 
directed against the business of an employer by way of con- 
spiracy. Where there is an agreement to induce one's em- 
ployees to cease work and to refrain from working until some 
unauthorized mandate of those in agreement is complied with, 
the latter may be held and punished for conspiracy. 4 Where 

not decide that such interference may become unlawful by reason of the de- 
fendant's malicious motives, but simply that to intimidate an employer by 
threats, if the threats are of such a nature as to induce this result, and thereby 
cause him to discharge an employee whom he desired to retain, and would have 
retained except for such unlawful threats, is an actionable wrong." 

1 Ruddy v. Journeymen Plumbers, 79 N.J.L. 467, 75 Atl. 742. 

» Angle v. Chicago R. Co., 151 U.S. 1, 14 Sup. Ct. 240. 

3 Schneider v. Journeymen Plumbers, etc., 116 La. 270, 40 So. 700. In this 
case members of a union who were appointed by the mayor as examiners of 
plumbers applying for certificates in the city of New Orleans were fined and ex- 
pelled for not choosing as inspector a member indicated by the union. They 
were also deprived of employment by reason of the loss of membership. The 
judgment in this case awarded restoration of membership, remission of the fines, 
damages, actual and punitive, and an injunction against further interference 
with their employment. 

* State v. Dalton, 134 Mo. App. 517, 114 S.W. 1132. (The members of two 
labor unions combined to secure the payment of a fine levied on an employer.) 
Employing Printers' Club v. Doctor Blosser Co., 122 Ga. 509, 50 S.E. 353. (An 
association of printers and publishers combined to fix prices and prevent compe- 
tition, and levied a fine against the Doctor Blosser Co. for accepting work in 
violation of the agreement. On his refusal to pay the fine his business was 
interfered with and his employees coerced into withdrawing from his service.) 



LABOR DISPUTES 299 

intimidation and violence are used, there is of course no question 
of the illegality of the acts no matter how lawful the object in 
view might be ; * and unions giving financial support to strikers 
and pickets guilty of such unlawful conduct will be themselves 
liable for so aiding and abetting it. 2 

A number of statutes have been enacted directed to the 
subject of interference with employment, conspiracy against 
workingmen, intimidation, etc. Some of these apply to specific 
employments, as those prohibiting interference with or the in- 
timidation or molestation of railroad employees, 3 or seamen. 4 
More commonly, however, the acts are of general application 
and prohibit conspiracy against or interference with any lawful 
business by force or by threats of violence to person or prop- 
erty ; 5 or the use of means calculated or intended to intimi- 
date or compel one against his will to do or refrain from doing 
any act which he has a legal right to do, or injury or threats of 
injury to person or property with intent to intimidate any 
person ; 6 or threats, violence, or intimidation preventing or 
attempting to prevent any person from engaging or remaining 
in any lawful business, employment, or occupation. 7 These 
laws for the most part embody the principles of the common law 
relative to conspiracy or the unlawful infringement on the rights 
of others by coercion or other improper means. While they are 

1 Purvis v. Carpenters and Joiners, 214 Pa. St. 348, 63 Atl. 585. 

2 Jones v. Maher, 116 N.Y. Supp. 180, 62 Misc. Rep. 388. 

3 Del., R.C., p. 928, sec. 3 ; 111., R.S., ch. 114, sees. 109, 110 ; Ky. St., sec. 803. 

* La., R.L., sec. 944. 

* Ala., Code, sees. 6394, 6856. 
8 Conn., Acts 1909, ch. 202. 

7 Ga., Pen. Code, sees. 123-126; see also III., R.S., ch. 38, sees. 158, 159; 
Me., Acts 1903, ch. 127. sec. 21 ; Mass., Acts 1909, ch. 514, sec. 18 ; N.Y., C.L., 
ch. 40, sec. 530 ; Wash., Acts 1909, ch. 249, sec. 362. 



300 LAW OF THE EMPLOYMENT OF LABOR 

penal in form and effect, subjecting their violators to penalties 
of fines or imprisonment, 1 their violation also operates to give 
a right of action to a party injured by the unlawful act. 2 
"When such an injury results, from the execution of a con- 
spiracy, it is the wrongful act done in carrying out the concerted 
plan, and not the conspiracy itself which furnishes the real 
ground for a civil action." In all the above cases the defendant 
or defendants were agents or members of labor organizations, 
and their actions were regarded as representing the force and 
influence of numbers. Thus in the Fischer case, it was said that 
"the accused was present, and professed to speak as the 
authorized agent of a large organization." In Wyeman v. Deady, 
"Deady was the business agent and so-called walking delegate 
of the defendant union, and did said acts not only with the 
knowledge and approval, but by the authority of the union," etc. 
This fact would bring the acts within the common law principle 
of conspiracy, while it was also true that the acts were unjusti- 
fiable interference with employment, usually by violent or co- 
ercive means, so that they would apparently have come under 
the condemnation of the law without statutory provision. 
But as remarked in another connection, such statutes have at 
least the effect of declaring the policy of the states in which 
they exist, and so have a measure of value. 

Section 125. Remedies by Suits at Law. — It has frequently 
appeared in the foregoing sections that persons, employers or 
employees, may recover damages for injurious interference, 
without justification, with employment or business by acts 

1 State v. Stockford, 77 Conn. 227, 58 Atl. 769 ; State v. McGee, 80 Conn. 
614, 69 Atl. 1059 ; Fischer v. State, 101 Wis. 23, 76 N.W. 694. 

■ Wyeman v. Deady, 79 Conn. 414, 65 Atl. 129 ; Carter v. Oster, 134 Mo. App. 
146, 112 S.W. 995. 



LABOR DISPUTES 301 

done in connection with labor disputes; and it only remains 
under this head to illustrate briefly the manner and extent of 
the application of this rule of law. 

An employer is entitled to a judgment for damages where a 
union has unjustifiably caused injury on account of his failure 
to carry on his business according to the methods prescribed by 
the union. 1 In the Carew case a union levied a fine on an em- 
ploying stonecutter, and coerced him into payment by procur- 
ing his workmen to leave him until he was unable to fill his con- 
tracts, the purpose being to enforce the closed shop. To compel 
one to yield to an illegal demand in order to secure the privilege 
of carrying on his business was said to be unlawful, if not actu- 
ally a criminal conspiracy, and is "a species of annoyance and 
extortion which the common law has never tolerated.' ' The 
judgment included the repayment to the employer of the amount 
of the fine, as well as damages. In order to recover a fine in such 
circumstances, it must appear that it was paid under coercion 
and to remove an actual obstacle to the conduct of business, 
since, if paid voluntarily or without duress, it will not be recov- 
erable. 2 In the case of the Old Dominion Steamship Company, 
the union had interfered with the shipping of sailors, and de- 
clared a boycott because the company had refused to pay 
laborers in one locality the rates usually paid more skilled men 
in another locality. In the cases of the F. R. Patch Mfg. Com- 

1 Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287 ; Old Dominion S.S. Co. v. 
McKenna, 30 Fed. 48 ; F. R. Patch Mfg. Co. v. Int. Ass'n. of Machinists,' 77 Vt. 
294, 60 Atl. 74 ; O'Neil v. Behanna, 182 Pa. St. 236, 37 Atl. 843 ; Doremua v. 
Hennessy, 176 111. 608, 52 N.E. 524 ; Moores v. Bricklayers' Union, 10 Ohio Dec. 
(Rep.) 645 ; Branson v. Industrial Workers of the World, 30 Nev. 270, 95 Pac. 
354 ; Thacker Coal & Coke Co. v. Burke, 59 W. Va. 253, 53 S.E. 161. 

* Burke v. Fay, 128 Mo. App. 690, 107 S.W. 408. See also March v. Brick- 
layers, etc., 79 Conn. 7, 63 Atl. 291. 



302 LAW OF THE EMPLOYMENT OF LABOR 

pany and of O'Neil v. Behanna, coercive and unlawful means 
were used to sustain the demands of striking workmen. In the 
Doremus case the violation of contracts was procured by a 
laundrymen's association seeking to compel a general advance 
in prices. 1 In the case of Moores v. Bricklayers, members of a 
union had given notice that they would work no material pur- 
chased from a material man who had disregarded a boycott 
order issued by the union. 2 In the Branson case a union at- 
tempted to procure the discharge of members of another union 
unless they would join the defendant union. In the case of the 
Thacker Coal Company, members of the union were held to be 
liable in damages for procuring workmen under contract to leave 
employment, in an effort to unionize the mine. 

A leading case involving the right of an employee to damages 
where union activities prevent his employment is one in which 
an agreement between a union and an association of employers 
provided that the latter would employ no one not a member of 
the union for a longer period than four weeks, within which time 
he should become a member of the union or be discharged. 3 
The plaintiff declined to become a member, and was discharged 
accordingly. In the suit against the union the only defense 
offered was the contract. The court held that the principle of 
this contract was "glaringly at variance with that freedom in 
the pursuit of happiness which is believed to be guaranteed to all 
by the provisions of the fundamental law of the state," and that 
the effectuation of the purpose expressed in it " would conflict with 

1 See also Employing Printers' Club v. Doctor Blosser Co., 122 Ga. 509, 50 S.E. 
353. 

2 See also Purington v. Hinchcliff, 219 111. 156, 76 N.E. 47 ; Purvis v. Carpen- 
ters, etc., 214 Pa. St. 348, 63 Atl. 585. 

3 Curran v. Galen, 152 N.Y. 33, 46 N.E. 297. 



LABOR DISPUTES 303 

that principle of public policy which prohibits monopolies and 
exclusive privileges." The plaintiff, Galen, was therefore de- 
clared to be within his rights in suing for damages resulting from 
the procurement of his discharge. The fact that the contract 
was such as to bar nonunion men from all employment locally 
was held to put this case on a different footing from one in which 
the contract was between a union and but a single employer. 1 
It was said in the Jacobs case that the doctrine of the Curran 
case had not been overruled by the opinion in a case in which 
was upheld the right of an organization to threaten strikes so as 
to procure the discharge of workmen in order to secure the em- 
ployment of members in their stead. 2 The dissenting opinion 
in the Cumming case, however, was to the effect that the doctrine 
of Curran v. Galen required a contrary finding in the case in 
hand. In Massachusetts it is consistently held that an employee 
is entitled to damages where his discharge results from a com- 
bination of persons to obtain it because he refuses to become a 
member of the union or act otherwise for their advantage in a 
matter in which he has the right to act independently. 3 

Not onty actual but punitive damages may be awarded a 
workman whose employment has been maliciously, i.e., inten- 
tionally and unjustifiably, interfered with; and where such 
interference is the action of an acknowledged representative of 
a union, and is directed or approved by the latter, both he and 
it are liable as joint tort feasors. 4 Where loss of employment 

» Jacobs v. Cohen, 183 N.Y. 207, 76 N.E. 5. 

* National Prot. Ass'n. of Steamfitters, etc., v. Cumming, 170 N.Y. 315, 63 
N.E. 369. 

8 Berry v. Donovan, 188 Mass. 359, 74 N.E. 603 ; citing many cases. A judg- 
ment against Donovan, a representative of the union, in the sum of $1500 was 
affirmed. * Wyeman v. Deady, 79 Conn. 414, 65 Atl. 129. 



304 LAW OF THE EMPLOYMENT OF LABOR 

follows unlawful expulsion from a union, damages are recover- 
able, as well as an order for reinstatement. 1 Damages may 
include not only the actual wages lost, but may also cover the 
loss of rank, damages to reputation, and the hindering of the 
complainant's prospects of advancement. 2 

The judgment for damages may lie against the persons active 
in carrying put the purposes of the union, 3 or against the union 
as such, 4 or against individual members and the union. 5 Where 
a judgment against a union is unsatisfied, the amount may be 
recovered against the individual members ; 6 and, in general, 
all the parties to a wrongful agreement are liable for illegal acts 
done in the carrying out of the agreement. 7 The fact of crimi- 
nal liability does not affect the right of injured persons to bring 
civil actions for the recovery of damages. 8 In a number of 
cases where unincorporated unions were held liable in damages, 
it was by virtue of a statute fixing their status, the common law 
rule generally observed being to the effect that such bodies can- 
not, as such, either sue or be sued. 

1 Schneider v. Journeymen Plumbers, etc., 116 La. 270, 40. So. 700 ; Brennan 
v. Hatters, 73 N.J.L. 729, 65 Atl. 165 ; Blanchard v. Carpenters & Joiners, 77 
N.J.L. 389, 71 Atl. 1131. 

2 De Minico v. Craig, 207 Mass. 593, 94 N.E. 317. 

3 Gatzow v. Buening, 106 Wis. 1, 81 N.W. 1003 ; Curran v. Galen, supra; 
O'Neil v. Behanna, supra; Carew v. Rutherford, supra. 

* F. R. Patch Mfg. Co. v. Int. Ass'n. of Machinists, supra; Branson v. Indus- 
trial Workers of the World, supra; Brennan v. Hatters, supra; Schneider v. 
Journeymen Plumbers, supra; Jones v. Maher, 116 N.Y. Supp. 180, 62 Misc. 
Rep. 388. 6 Wyeman v. Deady, supra. 

« F. R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 Atl. 938. 

7 Purington v. Hinchcliff, supra, and cases cited ; Toledo, etc., R. Co. v. 
Penna. Co., 54 Fed. 730 ; F. R. Patch Mfg. Co. v. International Ass'n. of Ma- 
chinists, supra. 

BUnderhill v. Murphy, 117 Ky. 640,78 S.W. 482; Purvis v. Carpenters & 
Joiners, supra; Wyeman v. Deady, supra. 



LABOR DISPUTES 305 

Section 126. Injunctions. — A remedy in more common use 
than the suit for damages is the preventive remedy of the in- 
junction or restraining order which issues from a court of equity 
for the purpose of preventing injury or of preserving the status 
quo until final determination of rights can be had. Though 
coming more widely into public notice in recent years on account 
of its use in important labor disputes, the writ of injunction is 
of ancient origin, its counterpart existing in 5 the decretal of the 
Roman law. 1 While injunctions are most commonly restrictive 
or prohibitory in their operation, the mandatory injunction, 
ordering the performance of a specified act, is not unknown, at 
least to the extent of requiring the rendering of the service or 
the performance of the work or duty which is incumbent on the 
enjoined party in the premises. 2 The writ is most frequently 
invoked, however, so far as concerns the present study, to re- 
strain the commission of injurious and unlawful acts in the 
furtherance of labor disputes, as picketing, boycotting, the 
distribution of unfair lists, and other forms of activity which 
are classed as coercive, intimidating, or as unjustifiably inter- 
fering with employment or business. 

The injunction is classed as an extraordinary remedy, and is 

1 Bouvier, Law Diet. 

J Toledo, etc., R. Co. v. Pennsylvania Co., 54 Fed. 730 ; Lennon v. Lake 
Shore, etc., R. Co., 22 U.S. App. 561 ; In re Lennon, 166 U.S. 548, 17 Sup. Ct. 658. 
In this case the Pennslyvania Co. had sought to avoid difficulty with its work- 
men by refusing to handle cars or freight from the complainant road, against 
which a strike was in progress. The court enjoined the Pennsylvania company 
and its officers and employees from refusing to afford the complainant road equal 
facilities to those furnished other companies. This left all defendants free to 
cease all railway service or employment, but obligated them, if they furnished 
any, to furnish it to all alike. It was Lennon's refusal to do this, while still 
remaining in service as a locomotive engineer, that brought him under the judg- 
ment of the courts. 



306 LAW OF THE EMPLOYMENT OF LABOR 

to be resorted to only when the remedy at law is inadequate, 
" depending on whether the injury done or threatened is of such 
a nature that, when accomplished, the property cannot be 
restored to its original condition, or cannot be replaced by 
means of compensation in money; or whether full compensa- 
tion for the entire wrong can be obtained without resort to a 
number of suits." 1 While no final decree will be made without 
a hearing of both parties, a preliminary or interlocutory decree 
may be issued at the instance of one party, who must show not 
merely possible or probable danger of interference with his 
rights or property, but that the injury is either already occa- 
sioned and will continue unless enjoined, or that it is so immi- 
nent as to warrant the intervention of the court. Other facts 
to be shown are the irresponsibility, from a financial standpoint, 
of the parties against whom the injunction is sought; their 
numbers, making suits at law numerous and burdensome ; and 
the preponderance of the threatened loss of the complainant 
over the inconvenience of the respondents which would follow 
the issue of the writ ; though not all of these would be required 
in a single instance. 2 

Injunctions are granted only by courts of equity, and only in 
cases of equitable cognizance according to the established prin- 
ciples of equity jurisdiction. Since the purpose of the injunc- 
tion is chiefly to maintain present conditions, and it is without 
power to procure the restoration of conditions already changed, 
it is said that an injunction will not issue relating exclusively 



1 Barr v. Essex Trades Council, 53 N.J. Eq. 101, 30 Atl. 881. 

2 My Maryland Lodge v. Adt, 100 Md. 238, 59 Atl. 721 ; Sherry v. Perkins, 147 
Mass. 212, 17 N.E. 307 ; Coeur d'Alene Co. v. Miners' Union, 51 Fed. 260 ; In re 
Debs, 158 U.S. 564, 15 Sup. Ct. 900 ; Dudley v. Hurst, 67 Md. 44, 8 Atl. 901. 



LABOR DISPUTES 307 

to acts already committed. 1 It may be issued, however, even 
after the termination of a strike, on the ground that the right 
to relief is to be determined by the status existing at the time of 
the filing of the bill. 2 An injunction will not issue to restrain 
the commission of criminal acts, merely as such, but where such 
acts involve injuries to property or property rights for which 
the law does not afford redress within the principles laid down 
above, equity will intervene by means of the injunction, even 
though the prohibited acts would be punishable by the state as 
criminal. 3 Where there is no adequate proof of intimidation 
or impending danger, no writ will be granted ; 4 actual violence 
is not necessary, however, to ground a successful complaint, 
since the numbers of the striking employees, their positions, 
attitudes, looks, ridicule, threats, etc., may produce intimida- 
tion and coercion against which an injunction will be allowed. 5 
The free use of streets, free access to works, and freedom from 
insulting or otherwise objectionable treatment, both at home 
and in public places, are among the rights of every citizen ; and 
an employer's interest in such rights for his employees and cus- 

1 Reynolds v. Everett, 144 N.Y. 189, 39 N.E. 72 ; De Minico v. Craig, 207 
Mass. 593, 94 N.E. 317 ; City of Alma v. Loehr, 42 Kans. 368, 22 Pac. 424. 

8 U.S. v. Workingmen's Amalgamated Council, 54 Fed. 944. ("Rights do not 
ebb and flow. If they are invaded, and recourse to courts of justice is rendered 
necessary, it is no defense to the invasion of a right that since the institution of 
the suit the invasion has ceased. With emphasis would this be true where, as 
here, the right to invade is not disclaimed.") 

8 Sherry v. Perkins, supra; Coeur d'Alene Co. v. Miners' Union, supra; 
United States v. Elliott, 62 Fed. 801 ; Arthur v. Oakes, 63 Fed. 310, 11 CCA. 
209 ; Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324. 

* Everett-Waddy Co. v. Richmond Typ. Union, 105 Va. 188, 53 S.E. 273 ; 
Rogers v. Evart, 17 N.Y. Supp. 264. 

6 Barr v. Essex Trades Council, supra; Jordahl v. Hayda, 1 Cal. App. 696, 82 
Pac. 1079. 



308 LAW OF THE EMPLOYMENT OF LABOR 

tomers, actual or potential, is sufficient to support a complaint 
from him and to secure an injunction on a proper showing of 
facts. 1 In general, it may be said that what acts will warrant 
the intervention of a court of equity will be determined by 
the circumstances in each case rather than by any general rule, 
and in deciding the matter the courts will consider the spirit 
and intent, and not merely the form and letter, of the act or 
word. 2 

An injunction may issue on the initiative of the state, to abate 
a public nuisance, such as the obstruction of a highway or in- 
terference with the transportation of the mails ; 3 and the fact 
that the act enjoined would be an offense punishable criminally 
does not interfere with the issue of the writ. 4 In the Debs case, 
involving obstruction of the mails and of interstate traffic, it 
was said by the Supreme Court : " It must be borne in mind 
that this bill was not simply to enjoin a mob and mob violence. 
It was not a bill to command a keeping of the peace ; much less 
was its purport to restrain the defendants from abandoning 
whatever employment they were engaged in. The right of any 
laborer, or any number of laborers, to quit work has not been 
challenged. The scope and purpose of the bill was only to re- 
strain forcible obstructions of the highways along which inter- 
state commerce travels and the mails are carried.' ' 

In line with the above, it is true that no injunction will issue 
to restrain a libel or slander, merely as such ; and this fact has 

1 American Steel & Wire Co. v. Wire Drawers' Union, 90 Fed. 608 ; In re 
Debs, supra; Jersey City Printing Co. v. Cassidy, 63 N.J. Eq. 759, 53 Atl. 230. 

* Cceur d'Alene Co. v. Miners' Union, supra. 

* Att'y General v. Ice Co., 104 Mass. 239 ; State v. Goodnight, 70 Texas 682, 
11 S.W. 119 ; U.S. v. Debs, 64 Fed. 724 ; In re Debs, supra. 

4 In re Debs, supra; Port of Mobile v. R. Co., 84 Ala. 115, 4 So. 106. 



LABOR DISPUTES 309 

been relied upon by parties publishing unfair lists, boycott 
notices, and the like, as a defense against the issue of an injunc- 
tion to restrain such publications. It is held by the weight of 
authority, however, that they may properly be enjoined, not as 
libels, but as intimidating and coercive. 1 "In the case of an 
unlawful conspiracy, the agreement to act in concert when the 
signal is published, gives the words 'unfair/ 'we don't patron- 
ize/ or similar expressions, a force not inhering in the words 
themselves, and therefore exceeding any possible right of speech 
which a single individual might have. Under such circum- 
stances they become what have been called 'verbal acts/ and 
as much subject to injunction as the use of any other force 
whereby property is unlawfully damaged." 2 It has been held, 
however, that a finding containing "no allegations that the 
mere notification of customers that plaintiffs are 'unfair' has 
any special significance, that it portends injury, or was intended 
as a threat or intimidation," would not sustain an injunction 
forbidding the notification of customers that the plaintiffs were 
unfair ; 3 though it seems hardly too much to say at the present 
time that the word has acquired a technical signification of 
which the courts might take cognizance, especially where the 
use of the word is one of a series of acts of which the others are 
enjoinable. 4 Where an injunction has been granted restraining 

1 Cceur d'Alene Co. v. Miners' Union, supra; Beck v. Railway Teamsters' 
Prot. Union, 118 Mich. 497, 77 N.W. 13 ; Casey v. Typographical Union, 45 
Fed. 135. 

J Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 Sup. Ct. 492. See 
per contra, Marx & Haas Jean Clothing Co. v. Watson, 168 Mo. 133, 67 S.W. 
391 ; Lindsay v. Montana Fed. of Labor, 37 Mont. 264, 96 Pac. 127. 

» Gray v. Building Trades Council, 91 Minn. 171, 97 N.W. 663. 

4 Seattle Brewing Co. v. Hansen, 144 Fed. 1011 ; Loewe v. Cal. State Fed. of 
Labor, 139 Fed. 71 ; Huttig Sash & Door Co. v. FueUe, 143 Fed. 363. 



310 LAW OF THE EMPLOYMENT OF LABOR 

interference with business, newspaper publications inciting to 
a violation of the injunction will themselves be enjoined, not as 
depriving the periodical in question "of any lawful right to 
publish the truth or express its opinion in a lawful manner; 
but no newspaper has the right to publish any matter intended 
to aid wrongdoers in accomplishing a wrongful purpose or doing 
unlawful things, or to aid unlawful combinations in making 
effective an unlawful conspiracy." * 

Questions of the jurisdiction of state and federal courts are 
determined by the same tests of diversity of citizenship of the 
parties, or of the consideration of federal questions, as in other 
classes of cases. Thus where in an injunction proceeding 
brought by a Missouri corporation, involving defendants resi- 
dent in Missouri and in Kansas, the case against the former 
was dropped in proceedings before a federal court, which left 
the case properly in the hands of that court. 2 Though if a 
federal court has jurisdiction of an original case, it may issue an 
injunction therein without regard to the citizenship of the 
parties. 

A bond is usually required before a preliminary injunction 
will issue, to cover any loss or damage that may accrue to the 

1 Telephone Co. v. Kent, 156 Fed. 173. 

2 Hopkins v. Oxley Stave Co., 83 Fed. 912, 28 CCA. 99. The states have not 
accepted with equal readiness the principles of equity or made equally free use of 
it in its application to labor questions, while federal courts have been governed 
by a law declaring their full equity jurisdiction, and have doubtless felt a mutual 
and general influence more readily than has been the case with the state courts. 
These facts may in part account for a somewhat widespread feeling that the writ 
of injunction, especially as used in labor disputes, is peculiarly an instrument of 
the federal courts. It seems, however, that, apart from cases involving federal 
receiverships, injunctions in labor disputes were first used by state courts; and 
it is said that the rights of state and federal courts in regard to the issue of in- 
junctions are "precisely the same." Union P. R. Co. v. Ruef, 120 Fed. 102. 



LABOR DISPUTES 311 

defendant if it shall appear at the final hearing that the order 
was not a proper one, though the giving of such bond is a matter 
of statutory regulation. The injunction becomes effective only 
on the filing of the bond, if one is required, but is then binding 
on the parties to whom it is directed after they have had notice, 
without the necessity of a formal service of the writ. The order 
is also binding upon all other persons whatsoever, even if not 
named therein, from and after the time when they have actual 
knowledge of its existence. 1 Questions of validity are deter- 
minable by the courts, and a defendant believing his rights to 
be infringed upon by the granting of an injunction has recourse 
only to them. Disobedience is at his peril so long as the in- 
junction is in existence, no matter how erroneously or improvi- 
dently it was granted, 2 since "if a party can make himself a 
judge of the validity of orders which have been issued, and by 
his own act of disobedience set them aside, then are the courts 
impotent, and what the Constitution now fittingly calls the 
'judicial power of the United States' would be a mere mockery." 3 
"If an injunction is for any reason totally invalid, no violation 
of it constitutes a punishable contempt; but if the court ac- 
quired jurisdiction, and did not exceed its powers in the partic- 
ular case, no irregularity or error in the procedure or in the 
order itself could justify disobedience of the writ." 4 A su- 

1 Ex parte Lennon, 64 Fed. 320 ; United States v. Agler, 62 Fed. 824 ; In re 
Lennon, supra. 

2 A. R. Barnes & Co. v. Typographical Union, 232 111. 402, 83 N.E. 932 ; Carr 
v. District Court, 147 Iowa 663, 126 N.W. 791. 

3 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 Sup. Ct. 492 ; and see 
Huttig Sash & Door Co. v. Fuelle, supra; Vilter Mfg. Co. v. Humphrey, 132 Wis. 
587, 112 N.W. 1095. 

* United States v. Debs, 64 Fed. 724 ; Ex parte Watkins, 3 Peters 193, 28 U.S. 
119. 



312 LAW OF THE EMPLOYMENT OF LABOR 

perior court cannot interfere to prevent an inferior court from 
issuing injunctions where the latter clearly has jurisdiction over 
the matter in question. 1 The question of appeals from orders 
granting injunctions is controlled chiefly by statute, and it is 
held as the better view that in the absence of legislative provision 
no appeal will lie in cases involving preliminary injunctions ; 2 
and even wliere the appeal is allowed, the superior courts are 
averse to any free exercise of its use, requiring a definite showing 
of the abuse of the discretion committed to courts having power 
to issue injunctions, so that unless it is shown that the writ was 
illegally or improvidently granted, it will not be disturbed; 3 
and where a writ is set aside for these reasons, and was not 
technically void from the first, prior violations of it are punish- 
able, since it is in force until set aside by proper proceedings in 
court. 4 Appeals may be taken from final injunctions, but the 
appeal does not suspend the operation of the restraining order ; 
and to hold the contrary would obviously make it possible to 
thwart the entire purpose of the injunction in many cases; 
the court issuing the injunction may punish violators of it for 
contempts committed during the pendency of the appeal, 5 as 
may also the appellate court, since a disregard of the injunction 
under review is a contempt of the court to which it is to be or 
has been submitted. 6 The same rule holds where a temporary 

1 State v. Judge, 29 La. Ann. 360. 

2 United States Heater Co. v. Iron Molders' Union, 129 Mich. 354, 88 N.W. 
889 ; High, Injunctions, 4th ed., sec. 1693. 

3 Bonaud v. Genesi, 42 Ga. 639 ; Workingman's Amalgamated Council v. 
United States, 57 Fed. 85, 6 CCA. 258. 

4 Worden v. Searls, 121 U.S. 14, 7 Sup. Ct. 814. 

6 Worden v. Searls, supra; Bucks Stove & Range Co. v. American Fed. of 
Labor, 36 Wash. L. R. 822 ; Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 
31 Sup. Ct. 492 ; A. R. Barnes & Co. v. Chicago Typographical Union, supra. 

• Savings Bank v. City of Clay Center, 219 U.S. 527, 31 Sup. Ct. 295. 



LABOR DISPUTES 313 

injunction has been continued during the pendency of an 
appeal. 

Labor organizations may be made parties to injunction pro- 
ceedings, whether incorporated or not, 1 and the writ may be 
directed against the union, its officers and members, and other 
persons named in the bill, if any, and all other persons associ- 
ated with them in committing the acts and grievance com- 
plained of. It is therefore impossible to evade the force of the 
writ by bringing in third parties to carry out the plans of the 
enjoined members of the union, since the action of such parties 
would amount to a wrongful and unlawful uniting with the 
restrained persons for the purpose of thwarting the effect of the 
writ ; and the fact of knowledge of the writ is the only essential 
to charge liability under it, regardless of the omission of sub- 
poenas or formal service of notice. 2 On the other hand, if only 
certain officials or a limited number of the members are guilty 
of the illegal acts complained of, the orderly conduct of a lawful 
strike will not be interfered with by an injunction against all 
the members, but the writ will run only against those persons 
who have committed the objectionable acts. 3 This seems to 
differ somewhat from the views held by courts issuing the so- 
called " blanket injunctions," binding upon persons named "and 

1 Loewe v. Cal. State Fed. of Labor, supra; Purvis v. Brotherhood, 214 Pa. 
St. 348, 63 Atl. 585 ; American Steel & Wire Co. v. Wire Drawers' Union, supra; 
Iron Molders' Union v. Allis-Chalmers Co., 166 Fed. 45, 91 CCA. 631. 

» In re Bessette, 111 Fed. 417 ; Bessette v. Conkey, 194 U.S. 324, 24 Sup. Ct. 
665. ("Jurisdiction [over a third person] exists by reason of the conspiracy to 
defeat the process of the court, although such person is a stranger to the suit, 
and, by reason of his citizenship, could not have been made a defendant therein 
[in a case before a federal court].") 

3 Karges Furniture Co. v. Woodworkers' Union, 165 Ind. 421, 75 N.E. 877; 
Pope Motor Car Co. v. Keegan, 150 Fed. 148 ; Union P. R. Co. v. Ruef, supra. 



314 LAW OF THE EMPLOYMENT OF LABOR 

upon all other persons whatsoever who are not named therein, 
from and after the time when they shall severally have knowl- 
edge of such order and the existence of said inj unctions." * 
Apart from the liability to pay costs, which attaches to one 
named in an injunction, the actual difference is sentimental and 
theoretical rather than practical, however, as was set forth in 
one of the cases in which the names of apparently innocent 
defendants were stricken from the bill, the court stating that 
inclusion was not necessary to hold them to a strict compli- 
ance with the terms of the injunction after knowledge thereof ; 2 
and when defendants do not claim that the injunction restrains 
them from doing anything which they have a right to do, or 
which they have a desire to do, and the sole objection to the 
injunction is that it is unnecessary, the objection being urged 
because of the erroneous notion that the vacation of the injunc- 
tion is a vindication of the defendants, comparatively slight 
evidence of the usefulness or necessity of the injunction is suffi- 
cient to sustain a temporary order until final hearing. 3 

It has already been pointed out that labor combinations have 
been made the subject of legislative action intended to declare 
their status as lawful and not subjecting the members thereof 
to indictment as conspirators. A statute of New Jersey 4 de- 
clares it not unlawful for persons to combine to persuade, advise, 
or encourage by peaceable means others to enter into a combina- 
tion for or against leaving or entering employment. This seems 
to have been construed as legalizing private injuries ; 8 and was 

1 United States v. Debs, supra. 

2 Pope Motor Car Co. v. Keegan, supra; see also In re Lennon, supra; Boyd 
v. State, 19 Neb. 128, 26 N.W. 925. 

» Hall Lace Co. v. Javes, 76 N.J. Eq. 92, 79 Atl. 439. « G. S., p. 2344, sec. 23. 
6 Mayer v. Journeymen Stonecutters, 47 N.J. Eq. 519, 20 Atl. 492. 



LABOR DISPUTES 315 

held to permit the adoption of peaceable measures for inducing 
workmen to quit or to refuse to enter employment. 1 In a later 
case, however, the court of errors and appeals of the state held 
that, so construed, the law conflicted with the state constitution 
in its provisions as to the right of enjoying and defending life 
and liberty, and of acquiring, protecting, and possessing prop- 
erty, and that it could go no farther than to render combina- 
tions of the sort not indictable. 2 An injunction against pro- 
curing violations of contracts, whether for fixed terms or at will, 
was sustained in this case, as well as against coercive measures 
to prevent the flow of labor to the complainant's works. And 
clearly no law is constitutional which removes unjustifiable acts 
of interference with employment or occupation from the general 
control of the law. A statute of California 3 undertook specifi- 
cally to exempt from control by injunction acts done in fur- 
therance of disputes between employers and employees. This 
statute was pleaded in a strike case involving the boycott and 
picketing, whereupon the court held that it could not be con- 
strued as undertaking to prohibit a court from enjoining unlaw- 
ful acts, and if it could be so construed, it was to that extent void 
as violative of the plaintiff's rights of liberty and protection. 4 

It is clear that the injunction relates to injury to intangible 
rights no less than to injury to physical property. "The right 
to choose one's calling is an essential part of the liberty which 
it is the object of the government to protect; and a calling 

1 Cumberland Glass Mfg. Co. v. Glass Bottle Blowers, 59 N.J. Eq. 49, 46 Atl. 
208. 

a George Jonas Glass Co. v. Glass Bottle Blowers, 77 N.J. Eq. 219, 79 Atl. 262. 

3 Acts 1903, ch. 235. 

* Goldberg v. Stablemen's Union, 149 Cal. 429, 86 Pac. 806 ; Pierce v. Same, 
156 Cal. 70, 103 Pac. 324. 



316 LAW OF THE EMPLOYMENT OF LABOR 

when chosen is one's property and right." l The occupation by 
means of which a man earns a livelihood and supports those 
dependent upon him is property within the meaning of the law, 
and entitled to protection as such. 2 Employers and workmen 
are entitled to free opportunity of mutual access and the free 
exercise of choice in the matter of making and carrying out con- 
tracts of employment, and injunctions will issue to protect such 
rights. 3 These rights extend no less to prospective or mere 
possible employees than to those already in service, and to cus- 
tomers actual or possible as well. 4 In the case, Jersey City 
Printing Co. v. Cassidy, a doctrine of " probable expectancies" 
was proposed as an underlying principle, the court suggesting 
that it would probably be ultimately concluded "that the natu- 
ral expectancy of employers in relation to the labor market, and 
the natural expectancy of merchants in respect to the merchan- 
dise market, must be recognized to the same extent by courts 
of law and courts of equity," involving freedom in the labor 
market to employ or to be employed. 

While injunctions of this nature usually issue at the instance 
of the employer, workmen or groups of workmen may secure 
such orders against other workmen or organizations who are 
interfering with their opportunities for employment. 5 If it 
appears to the court, however, that the defendants are not 

i Slaughter House Cases, 16 Wall. (83 U.S.) 36. 

8 Gray v. Building Trades Council, supra; Beck v. Railway Teamsters' Prot. 
Union, supra. 

'Jersey City Printing Co. v. Cassidy, supra; American Steel & Wire Co. v. 
Wire Drawers' Union, supra; Union P. R. Co. v. Ruef, supra. 

* Beck v. Railway Teamsters' Union, supra; Goldberg v. Stablemen's Union, 
supra ; Jersey City Printing Co. v. Cassidy, supra. 

'Plant v. Woods, 176 Mass. 492, 57 N.E. 1011; Erdman v. Mitchell, 207 
Pa. St. 79, 56 Atl. 327 ; Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753. 



LABOR DISPUTES 317 

exceeding their rights in their efforts to secure labor for their 
own members and in the methods adopted, no injunction will 
issue. 1 Nor can one union secure an injunction against another 
to protect itself against disintegration by the acts of the rival 
union, since it has no property in its members, who, if aggrieved, 
must seek redress as individuals, the court holding that the 
union as such could not bring an action, even though the acts 
of the rival union were of an illegal nature ; 2 nor has a union 
such an interest in the employment of its members as pickets 
in a strike which it is conducting as to warrant the issue of an 
injunction on its petition to prevent interference with such em- 
ployment, where it does not appear either that the complainants 
are suffering substantial pecuniary damage, or that the defend- 
ants are not financially responsible for any damages that may 
result. 3 

On a suit for injunction a court may retain jurisdiction of the 
case in order to give such full relief as will finally dispose of the 
controversy and avoid multiplicity of suits. 4 Thus in consid- 
ering the propriety of issuing the injunction, it may also con- 
sider what damage, if any, the complainant has suffered by 
reason of the acts complained of, and award such amount as 
seems just; 5 and this is of course equally true whether the 
complainant is an employee 6 or an employer. 7 

1 National Protective Ass'n. v. dimming, 17 N.Y. 315, 62 N.E. 369. 

2 Silver State Council v. Rhodes, 7 Colo. App. 211, 43 Pac. 451. 

3 Atkins v. Fletcher Co., 65 N.J. Eq. 658, 55 Atl. 1074. 

4 Braman v. Foss, 204 Mass. 404, 90 N.E. 563 ; Gormley v. Clark, 134 U.S. 
338, 10 Sup. Ct. 554 ; Bispham's Equity, 6th ed., sec. 37. 

5 Baldwin v. Association, 162 Mich. 703, 130N.W.214; Purvis*. Brotherhood, 
supra. 

« De Minico v. Craig, 207 Mass. 593, 94 N.E. 317. 
7 Folsom v. Lewis (Mass.), 94 N.E. 316. 



318 LAW OF THE EMPLOYMENT OF LABOR 

There is little dispute as to the propriety of the issue of the 
injunction in circumstances involving the conditions set forth 
above; but there is wide difference of opinion as to when the 
point has been reached at which intervention is proper. This 
difficulty is pointed out in the matter of the boycott in a noted 
case in the following language : " Courts differ as to what con- 
stitutes a boycott that may be enjoined. All hold that there 
must be a conspiracy causing irreparable damage to the busi- 
ness of property of the complainant. Some hold that a boycott 
against the complainant by a combination of persons not im- 
mediately connected with him in business can be restrained. 
Others hold that the secondary boycott can be enjoined, where 
the conspiracy extends not only to injuring the complainant, 
but secondarily coerces or attempts to coerce his customers to 
refrain from dealing with him by threats that unless they do so 
they themselves will be boycotted. Others hold that no boy- 
cott can be enjoined unless there are acts of physical violence, or 
intimidation caused by threats of violence." x It is settled by 
a strong line of cases that the contention that what one may 
lawfully do alone many may do in concert is not tenable, so that 
an injunction will lie to prevent certain forms of combined 
action, though one alone doing the same thing would not be 
interfered with. 2 Yet an injunction against workmen so quit- 
ting service, whether with or without notice, as to cripple the 
business or hinder its continuance, 3 was on appeal modified so 

1 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 Sup. Ct. 492. 

•U.S. v. Kane, 23 Fed. 748; Grenada Lumber Co. v. Mississippi, 217 U.S. 
433, 30 Sup. Ct. 535 ; Allis-Chalmers Co. v. Iron Molders' Union, 150 Fed. 155 ; 
Jersey City Printing Co. v. Cassidy, supra; Lohse Patent Door Co. v. Fuelle, 
215 Mo. 21, 114 S.W. 997. 

• Farmers' L. & T. Co. v. Northern P. R. Co., 60 Fed. 803. 



LABOR DISPUTES 319 

as to omit the words restraining departure from service, though 
sustaining prohibitions of combinations and conspiracies having 
the object and intent of physically injuring the property or of 
actually interfering with its regular and continuous use. 1 The 
line drawn in some states by statutes forbidding the abandon- 
ment of rolling stock of railroads at other than division points or 
terminals affords a standard where applicable. 

It is equally difficult to harmonize the rulings of the courts 
in regard to persuasion. " Persuasion, too emphatic, or too 
long and persistently continued, may itself become a nuisance, 
and its use a form of unlawful coercion," 2 when, of course, it 
would be enjoined; and it has been very recently held that an 
injunction against inducing or persuading an employee under 
contract to render service to break such contract, and against 
" addressing persons willing to be employed, against their will, 
and thereby causing them personal annoyance, with a view to 
persuade them to refrain from such employment/' was properly 
issued ; 3 and in another case in the same court it was held in 
effect that the right to persuade existed only as to persons willing 
to listen to the arguments offered, since only thus can the free 
flow of labor and the exercise of freedom of choice, unrestrained 
by annoyance or coercion, be maintained. 4 This consideration 
prevailed to sustain the granting of an injunction against a labor 
organization to prevent it from fining or threatening to fine its 
members unless they should withdraw their service from an 

1 Arthur v. Oakes, 63 Fed. 310, 11 CCA. 209. 

2 Otis Steel Co. v. Iron Molders' Union, 110 Fed. 698. 

3 George Jonas Glass Co. v. Glass Bottle Blowers, 72 N.J. Eq. 653, 66 Atl. 
953 ; affirmed, 77 N.J. Eq. 219, 79 Atl. 262. 

« Frank v. Herold, 63 N.J. Eq. 443, 52 Atl. 152 ; see also Jersey City Printing 
Co. v. Cassidy, supra; Goldfield Consol. Min. Co. v. Miners' Union, 159 Fed. 
500 ; Union P. R. Co. v. Ruef, supra. 



320 LAW OF THE EMPLOYMENT OF LABOR 

employer against whom a strike had been declared, the court 
holding that any other conclusion would be inconsistent with 
the existence of a reasonably free labor market, to which both 
the employer and the employee are entitled. 1 

While it is well settled that a strike, viewed as a concerted 
cessation of workmen from labor, cannot be enjoined, the in- 
citement of t strikes may be a proper subject of restraint, as 
where there is a conspiracy involving interference with inter- 
state commerce ; 2 and it was held in the case cited that a 
mandatory injunction might issue against the head of such con- 
spiracy, compelling him to rescind an offending order; and 
incitement may be enjoined if the strike would involve the breach 
of contracts of employment; 3 or has for its object a monopo- 
listic purpose, as by preventing the employment of any but 
members of a labor organization. 4 This last is a much-disputed 
point, however, 5 and the question is often decided according 
to the adjudged motives of the strikers. 6 Where the strike 
partakes of the nature of a boycott, it is generally held that acts 
tending to incite it may be enjoined. 7 Clearly third persons, 
unrelated to the parties affected by either employment contracts 

1 L. D. Willcut & Sons Co. v. Bricklayers, 200 Mass. 110, 85 N.E. 897; and 
see Connett v. Hatters, 76 N.J. Eq. 202, 74 Atl. 188. 

2 Toledo, etc., R. Co. v. Pennsylvania Co., 54 Fed. 730. 

3 A. R. Barnes & Co. v. Berry, 156 Fed. 72 ; Wabash R. Co. v. Hannahan, 121 
Fed. 563. 

4 Erdman v. Mitchell, supra; State v. Donaldson, 32 N.J.L. 151, 90 Am. Dec. 
640; Plant v. Woods, supra; Reynolds v. Davis, 198 Mass. 294, 84 N.E. 457; 
A. R. Barnes & Co. v. Berry, 156 Fed. 72. 

B Gray v. Building Trades Council, supra. 

6 National Protective Ass'n. v. Cumming, supra; State v. Stockford, 77 Conn. 
227, 58 Atl. 769 ; Pickett v. Walsh, supra. 

7 Purvis v. Brotherhood, supra; Schlang v. Ladies' Waist Makers' Union, 124 
N.Y. Supp. 289 ; Booth v. Burgess, 72 N.J. Eq. 181, 65 Atl. 226. 



LABOR DISPUTES 321 

or by organization, will be enjoined from interfering with con- 
tracts of employment. 1 It has been pointed out that the defi- 
nitions of the boycott vary, 2 but according to what appears to 
be the more commonly accepted use of the word, it involves acts 
of injurious combination, not justifiable as trade competition, 
and subject to injunction. 3 Where the boycott constitutes 
an interference with interstate commerce, it may be enjoined 
on account of such fact ; 4 so also if it amounts to a violation of 
the federal antitrust law, 5 or obstructs the mails. 6 

The subject of picketing requires but brief notice here. 7 The 
matter of issuing injunctions to restrain this form of activity 
will be controlled by the views entertained by the court as to its 
lawfulness generally and the conditions affecting the particular 
case. Where it is regarded as an unlawful interference with 
business or employment, it will be enjoined, and has been itself 
called an attempt to enforce an unauthorized injunction by the 
organization engaging therein. 8 In a few cases all picketing 
has been regarded as unlawful and subject to injunction; 9 but 
the weight of opinion refuses to interfere with peaceful picketing, 

1 United States v. Haggerty, 116 Fed. 510; Hitchman Coal Co. v. Mitchell, 
172 Fed. 963 ; Connett v. Hatters, supra. 

2 This section above ; and see Pierce v. Stablemen's Union, 156 Cal. 70, 103 
Pac. 324. 

8 See sec. 122 ; and see Lohse Patent Door Co. v. Fuelle, supra; Shine v. Fox 
Bros. Mfg. Co., 156 Fed. 357, 86 CCA. 311 ; Purvis v. Brotherhood, supra. 
* Toledo, etc., R. Co. v. Pennsylvania Co., supra; In re Debs, supra. 

6 Loewe v. Lawlor, 208 U.S. 274, 28 Sup. Ct. 301 ; United States v. Working- 
men's Amal. Council, 54 Fed. 994. 

8 In re Debs, supra. 

7 See sec. 121. 

8 Otis Steel Co. v. Iron Molders' Union, 110 Fed. 698; and see Sherry v. 
Perkins, supra; Union P. R. Co. v. Ruef, supra. 

8 Atchison, etc., R. Co. v. Gee, 139 Fed. 582 ; A. R. Barnes & Co. v. Typo- 
graphical Union, 232 III. 424, 83 N.E. 940. 

T 



322 LAW OF THE EMPLOYMENT OF LABOR 

which does not intimidate from force of numbers or other cause, 
and is merely to gain information or to effect peaceful persua- 
sion. 1 It was said in a recent case, however, that picketing, 
"in its mildest form, is a nuisance; and to compel a manu- 
facturer to have the natural flow of labor to his employment 
sifted by a self-constituted, antagonistic committee, whose very 
presence upon the highway for such purpose is deterrent, is just 
as destructive of his property as is a boycott which prevents the 
sale of his product." 2 In this case a boycott had been pre- 
viously declared unlawful, and an injunction had been granted 
against threats, intimidation, or coercion with a view to pre- 
venting workmen from accepting employment with the plaintiff 
company. In the present instance an injunction was allowed 
restraining the defendant association and its officers from per- 
suading or inducing persons or corporations not to deal with 
the company because it employed nonunion workmen. This 
is farther than injunctions usually go, but the court regarded the 
union as acting with no motive for interfering with the complain- 
ant beyond the avowed purpose of destroying it. "The result 
which they seek to obtain cannot come directly from anything 
they do within the regular line of their business as workers com- 
peting in the labor market. It can only come from action out- 
side of the province of workingmen, intended directly to injure 
another." 3 

1 Karges Furniture Co. v. Woodworkers' Union, supra; St. Louis v. Gloner, 
210 Mo. 502, 109 S.W. 30 ; Cumberland Glass Co. v. Glass Bottle Blowers, 
supra; Pope Motor Car Co. v. Keegan, supra; Iron Molders' Union v. Allis- 
Chalmers Co., 166 Fed. 45, 91 CCA. 631. 

a George Jonas Glass Co. v. Glass Bottle Blowers, 72 N.J. Eq. 653, 66 Atl. 953 ; 
affirmed, 77 N.J. Eq. 219, 79 Atl. 262. 

'Berry v. Donovan, 188 Mass. 353, 74 N.E. 603 ; and see Hopkins v. Oxley 
Stave Co., 83 Fed. 912, 28 CCA. 99 ; Shine v. Fox Bros., supra. 



LABOR DISPUTES 323 

The fact that offensive boycotting or picketing followed a 
strike that was in itself legal in no wise affects the issue of an 
injunction restraining the offending acts. 1 

Section 127. Contempts. — The willful violation or disregard 
of an injunctive order is a contempt of the court issuing it, and 
is liable to punishment as such. The power to enforce the pen- 
alty is inherent in all courts, and is essential to the enforcement 
of their orders and the due administration of justice. 2 Without 
it they would be "mere boards of arbitration whose judgments 
and decrees would be only advisory." 3 The right to punish 
contempts belongs exclusively to the court against which the 
offense was committed, since in order to the securing of obedience 
to its orders, a court must have the right to inquire whether 
they have been disobeyed, and to submit this question to an- 
other tribunal would deprive the proceeding of half its efficiency. 4 
This view extends to the trial of contempts by jury, the alleged 
right to such trial being denied. 5 Judgments of contempt may 
be taken for review to a superior court, 6 such proceeding, in the 
absence of special statutes, being governed by the statutes 
generally applicable to the review of judgments. 

Contempts are classed as direct, or those committed in the 

1 Sailors' Union v. Hammond Lumber Co., 156 Fed. 450, 85 CCA. 16 ; M. 
Steinert & Sons v. Tagen, 207 Mass. 394, 93 N.E. 584. 

* Ex parte Robinson, 19 Wall. (86 U.S.) 505 ; Bessette v. Conkey, 194 U.S. 
324, 24 Sup. Ct. 665. 

3 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 Sup. Ct. 492. 

* In re Debs, 158 U.S. 564, 15 Sup. Ct. 900. 

8 In re Debs, supra; Eilenbecker v. Plymouth Co., 134 U.S. 31, 10 Sup. Ct. 
424; O'Brien v. People, 216 111. 354, 75 N.E. 108; Thomas v. Cincinnati, etc., 
R. Co., 62 Fed. 803. 

6 Gompers v. Bucks Stove & Range Co., 37 Wash. L. R. 706, 33 App. D. C 
516 ; Same case, 221 U.S. 418, 31 Sup. Ct. 492 ; ex parte Terry, 128 U.S. 289, 
9 Sup- Ct. 77. 



324 LAW OF THE EMPLOYMENT OF LABOR 

presence of the court; and constructive or indirect, by which 
are meant acts of disobedience or disregard of its orders or writs 
elsewhere than its immediate presence. Obviously contempts 
in labor disputes will be mainly of the latter class. Various 
attempts have been made at legislative restriction of the power 
of the courts to punish for contempts, and some laws of this 
intent have, been enacted. These laws may provide for jury 
trial in cases of indirect contempt, 1 or limit the penalty that 
may be inflicted by the court. 2 All the statutes cited were 
declared unconstitutional by the courts of the respective states 
as being unwarranted interferences by the legislative branch of 
the government with the inherent rights and powers of a coor- 
dinate branch ; 3 and it has been broadly laid down that the 
power to protect itself from contempt, and also to determine 
what is a contempt, is inherent in every court of superior juris- 
diction, and that it is not within the power of the legislature to 
prevent the one or abridge the other. 4 It was said in a case 
involving a statute of the state of Georgia, that a provision of 
the constitution to the effect that the power of the courts to 
punish for contempts shall be limited by legislative acts does 
not confer authority on the legislature to define contempts and 
restrict the jurisdiction of a superior court, created by the con- 
stitution, to those acts only which are specified. Thus a statute 

1 Okla., Acts 1895, ch. 13 ; Va., Acts 1897-8, p. 548. 

2 Mo., R.S., sec. 3882; Okla., Acts 1895, ch. 13. 

3 State v. Shepherd,'177 Mo. 234, 76 S.W. 88 ; Smith v. Speed, 11 Okla. 95, 66 
Pac. 511 ; Carter's Case, 96 Va. 805, 32 S.E. 780 ; 'Chicago, etc., R. Co. v. Gilder- 
sleeve, 219 Mo. 170, 118 S.W. 86; Burdett v. Commonwealth, 103 Va. 838, 48 
S.E. 878. 

<Cheadle v. State, 110 Ind. 301, 11 N.E. 426; and see O'Brien v. People, 
supra; Ford v. State, 69 Ark. 550, 64 S.W. 879 ; Anderson v. Drop Forging Co., 
34 Ind. App. 100, 72 N.E. 277. 



LABOR DISPUTES 325 

providing that the power of a court to punish for contempt shall 
not extend to any cases except misbehavior in or so near the 
court as to obstruct justice, or misbehavior of an officer of the 
court in official transactions, or disobedience of a lawful writ, 
order, or process of the court x is not binding on a constitutional 
court, and it may, in order to preserve its constitutional powers, 
treat as contempts acts which clearly invade them, since the 
power to punish contempts is inherent in every court of record. 2 
A statute of Kentucky, however, limiting penalties unless a jury 
trial is granted, 3 was referred to in a case before the supreme 
court of that state as controlling in a possible case ; 4 and 
statutes regulating procedure are doubtless valid. 5 

The violation of an injunction may be passive as well as active, 
as where the officers of a labor organization fail to use reasonable 
efforts to secure from members of their unions obedience to the 
injunctive order, if such failure is apparently colored by bad 
faith. 6 Nor is an injunction a necessary condition precedent 
to the commission of acts of contempt, since in cases of receiver- 
ships the mere fact that the property is in the hands of the courts 
makes interference with the receivers in the performance of their 
duties as officers of the courts contempt of court. 7 Where em- 

1 Ga., Civ. Code, sec. 4046. 

2 Bradley v. State, 111 Ga. 168, 36 S.E. 630 ; see also Hale v. State, 55 Ohio 
St. 210, 45 N.E. 199 ; ex parte McCown, 139 N.C. 95, 51 S.E. 957. 

» Ky. Stat., sec. 1291. * Underhill v. Murphy, 117 Ky. 640, 78 S.W. 482. 

5 N.Y., C.L., ch. 30, sees. 750-781 ; see People v. Dwyer, 90 N.Y. 402 ; 
People v. Court, 101 N.Y. 245 ; Wis., A.S., sees. 3477-3497 ; see Emerson v. 
Huss, 127 Wis. 215, 106 N.W. 518 ; Vilter Mfg. Co. v. Humphrey, 132 Wis. 587, 
112 N.W. 1095. 

8 In re McCormick, 117 N.Y. Supp. 70; and see Allis-Chalmers Co. v. Iron 
Molders' Union, 150 Fed. 155. 

7 Davis v. Gray, 16 Wall. (83 U.S.) 203 ; Thomas ». Cincinnati, etc., R. Co., 
supra; In re Doolittle, 23 Fed. 544. 



326 LAW OF THE EMPLOYMENT OF LABOR 

pioyees of a company that is in the hands of a receiver appointed 
by a court are dissatisfied with the wages paid by him, they may 
abandon the employment, and by argument or persuasion in- 
duce others to do the same ; 1 but if they resort to threats or 
violence to induce the others to leave, or accomplish their purpose 
without violence by overawing the others by preconcerted dem- 
onstrations 6f force, and thus prevent the receiver from carry- 
ing on the business, they are guilty of contempt. 2 And it has 
been held that strikers who were employees of a railroad not in 
the hands of a receiver are guilty of a contempt, even though 
intending none, if by unlawfully obstructing the operation of 
the road of their employer, not by merely quitting work, which 
is lawful, but by preventing the owners of the road from manag- 
ing their own engines and running their own cars, they thus 
interfere with the operation of the road which is in the receivers' 
hands. 3 

It will be found in the great majority of cases, however, that 
contempt is held to consist in the known violation of specific 
orders, issued by the courts at the instance of an aggrieved party, 
and that proof of the specific act will be necessary to determine 
guilt; though incitement to violations, if manifestly of that 
intent, as by speaking slightingly or defiantly of the court and 
its order, will also be regarded as contempt. 4 What is a con- 
tempt will, therefore, be a matter of fact to be determined by the 
circumstances in each case. An act lawful in itself may by its 

1 United States v. Kane, 23 Fed. 748 ; In re Doolittle, supra; Arthur v. Oakes, 
63 Fed. 310, 11 CCA. 1209. 

2 United States v. Kane, supra; In re Higgins, 27 Fed. 443 ; United States v. 
Weber, 114 Fed. 950. ■ In re Doolittle, supra. 

* Gompers v. Bucks Stove & Range Co., 37 Wash. L. R. 706, 33 App. D.C 
616 j United States v. Haggerty, 116 Fed. 510. 



LABOR DISPUTES 327 

relations become wrongful ; as where one labor organization is 
forbidden to interfere with the members of another in their 
employment, and its officers levy fines against their own mem- 
bers to compel them to cease work in such a manner as to lead 
to the discharge of the members of the complaining union. 
"The fact that such fine imposed upon its own members might 
be entirely lawful and just, when so imposed for a lawful purpose, 
cannot justify its infliction for a wrongful purpose in violation 
of a restraining order of a court." l The use of the highways, 
while in itself lawful, may be so practiced as to interfere un- 
justifiably with the tantamount right of others whose freedom 
the injunction was designed to protect, and so become a con- 
tempt. 2 

While the courts are not entirely agreed on the point, it 
is said by the Supreme Court that, where a boycott has been 
enjoined, "the strong current of authority is that the publica- 
tion and use of letters, circulars, and printed matter may consti- 
tute a means whereby a boycott is unlawfully continued, and 
their use for such purpose may amount to a violation of the 
order of inj unction." 3 It was said that the question involved 
was not one of freedom of speech, but the power of a court of 
equity to enjoin the continuance of "a boycott which, by words 
and signals, printed or spoken, caused or threatened irreparable 
damage." Where a boycott has been enjoined and the atten- 
tion of the public is subsequently directed to the fact that the 
plaintiff is still regarded as unfair by the organization against 
which the injunction ran, it is clear that contempt has been 

1 Chicago Federation of Musicians v. Musicians' Union, 139 III. App. 65. 
1 Mackall v. Ratchford, 82 Fed. 41 ; Ideal Mfg. Co. v. Ludwig, 149 Mich. 133, 
112 N.W. 723. 

■ Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 Sup. Ct. 492. 



328 LAW OF THE EMPLOYMENT OF LABOR 

committed ; l and the use of the device of publishing a list of 
dealers or persons in good standing with the organization, 
coupled with a statement that only material from fair firms 
would be worked by union labor, will not avoid conviction for 
contempt, even though the union professes readiness to explain 
to dealers that, owing to the existence of the injunction, material 
from the plaintiff's shop will be worked despite the omission of 
his name from the approved list. 2 One refusing to carry out a 
court's order to a railroad to supply equal facilities to all for the 
interchange of interstate commerce is guilty of contempt, though 
he might have left service with impunity. 3 

From what was said in the foregoing section as to the binding 
effect of injunctions on persons not parties to the original bill, 
it follows that such persons are liable for contempt committed 
in violation of the injunctive order; 4 and this is true even 
though the party might, on account of citizenship, have been 
precluded from the possibility of being made a party to the 
original bill. 5 Otherwise no possible relief could be afforded a 
plaintiff by way of any other than the most inclusive "blanket 
injunction," and the courts would be powerless to maintain their 
effectiveness or dignity. 

The punishment for contempt is by fine or imprisonment, or 
both, and is administered in the discretion of the court. Where 
damages are assessed, they will of course be adjusted to the 

* Gompers v. Bucks Stove & Range Co., 37 Wash. L. R. 706, 33 App. D.C. 516 ; 
Patterson v. Building Trades Council, 14 Pa. Dist. Rep. 843. 

» Huttig Sash & Door Co. v. Fuelle, 143 Fed. 363. 

8 Toledo, etc., R. Co. v. Pennsylvania Co., 54 Fed. 746 ; In re Lennon, 166 
U.S. 548, 17 Sup. Ct. 658. 

* In re Lennon, supra; Conkey v. Russell, 111 Fed. 417. 
1 Conkey v. Russell, supra. 



LABOR DISPUTES 329 

injury done. A corporation x or a voluntary association 2 
may be adjudged guilty of contempt and fined, their nature 
forbidding imprisonment, though responsible members of an 
unincorporated union may be committed to prison until a fine 
assessed against it is paid, this liability being based on the part- 
nership relation of the members of a voluntary association, in the 
view held by the court. 3 Persons carrying out the mandates of 
an organization and thereby violating an injunction cannot 
offer the defense of agency, but are themselves guilty of con- 
tempt if they were aware of the existence of the order. 4 

Contempts are classed as civil or criminal as the proceedings 
contemplate chiefly the relief and benefit of the complainant 
who is injured by a noncompliance of the defendant with the 
injunctive order, or the punishment of the guilty person as a 
vindication of the authority of the court. The line between 
the two classes is not always easy to draw, since a single pro- 
ceeding may partake of the characteristics of both. 5 Punish- 
ment by imprisonment may be remedial as well as punitive, and 
civil contempt proceedings frequently result not only in the im- 
position of a fine payable to the complainant, but also in com- 
mitting the defendant to prison. But imprisonment for civil 
contempt is coercive, to secure the performance of the order of 
the court in behalf of the complainant, and release will follow 
compliance ; whereas the penalty in a criminal procedure is 

1 Chicago Typothetse v. Franklin Union, 36 Chi. Legal News 18 ; affirmed, 
Franklin Union v. People, 220 III. 355, 77 N.E. 176. 

J A. R. Barnes <fe Co. v. Chicago Typographical Union, 232 111. 402, 83 N.E. 
932 ; Patterson v. District Council, 31 Pa. Sup. Ct. 112. 

3 Patterson v. District Council, supra. 

* In re Bessette, 111 Fed. 417 ; Gatzow v. Buening, 106 Wis. 1, 81 N.W. 1003. 

'Bessette v. Conkey, supra; O'Brien v. People, supra; Vilter Mfg. Co. v. 
Humphrey, supra. 



330 LAW OF THE EMPLOYMENT OF LABOR 

punishment for a completed act of disobedience, and imprison- 
ment in such a case would be for a definite term. 1 The mixed 
nature of the proceedings is manifest from the fact that the 
performance of the court's order to compensate the complain- 
ant is a vindication of its authority ; while the complainant is 
also indirectly benefited by the effect of a criminal punishment 
to prevent a repetition of the disobedience ; though such in- 
direct result cannot operate to convert a criminal contempt 
into a civil one. 2 An order of a court assessing a fine for con- 
tempt and directing that the fine be paid over to the original 
complainant was on appeal modified in respect of the disposition 
to be made of the fine, the court saying that there was no statute 
in the state authorizing the appropriation of a fine imposed for 
contempt of court to the party injured by the act constituting 
the contempt. 3 The distinction between a refusal to do an act 
commanded for the benefit of the complainant, and the doing 
of an act forbidden, affords a basis for classifying contempts as 
civil or criminal. In the former case the original complainant 
is a party; in the latter, only the state. In the former the rules 
of evidence and procedure will be civil ; in the latter, criminal, 
involving substantial differences in the rights and constitutional 
privileges of the defendants ; and one improperly sentenced or 
held for the payment of damages to a complainant on account 
of the violation of an injunction may on appeal be absolved from 
that obligation and yet be guilty of contempt of court and 
liable to punishment criminally. 4 

1 Gompers v. Bucks Stove & Range Co., 221'U.S. 418, 31 Sup. Ct. 492. 

* Gompers v. Bucks Stove & Range Co., supra. 

* A. R. Barnes & Co. v. Chicago Typographical Union, supra. 

* Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 Sup. Ct. 492 ; Wor- 
den v. Searls, 121 U.S. 14. 



LABOR DISPUTES 331 

An injunction against interference with the mails or interstate 
commerce, or with private business, may be violated by the 
commission of criminal acts. These are of course punishable as 
contempts, since they are acts of disobedience to the orders of 
the court, but are none the less indictable as crimes, whether 
the contempt was civil or criminal. 1 "A court enforcing obedi- 
ence to its orders by proceedings for contempt is not executing 
the criminal laws of the land, but only securing to suitors the 
rights which it has adjudged them entitled to." 2 

Section 128. Mediation and Arbitration. — In the matter of 
the adjustment of labor disputes, it is obvious that, as in any 
other class of disputes, the parties may agree to terms of settle- 
ment suggested by friendly intervenors, or may agree to refer 
the question in dispute to a person or committee chosen for the 
purpose. No question of enforcement or of legal construction 
could well arise under such circumstances, since adjustments of 
this sort take form and effect entirely from the mutual agree- 
ment of the parties in interest. As favoring the peaceful settle- 
ment of labor disputes in lieu of resort to strikes and lockouts, 
laws have been enacted in more than one-half of the states of 
the Union, and by Congress, providing for the formation of 
boards or tribunals for the adjustment of cases submitted to 
them. Submission may be made on the motion of the parties, 
or of either of them, as the law may provide ; while in some in- 
stances intervention is authorized on the initiative of the board 
or of a local municipal officer. The duty of preliminary inquiry 
and of making efforts at mediation may devolve under the 
statute on the commissioner of labor of the state, either on his 
own initiative or by request. 

8 N.Y., C.L., ch. 30, sec. 776. • In re Debs, supra. 



332 LAW OF THE EMPLOYMENT OF LABOR 

The law may provide for a state board, 1 or for local boards, 2 
or for both state and local boards. 3 Where the latter provision 
exists, the local boards may be authorized to ask for advice and 
assistance from the state boards, 4 or they may be independent 
and have full powers of action. 5 The methods of constituting 
the boards vary, though it is usually provided that their mem- 
bership shall represent both employers and employed. State 
boards are commonly appointed by the governors, while local or 
special boards may be selected by the court or judge having jur- 
isdiction in the locality, or the members may be chosen one by 
the employer, one by the workmen, and a third by the first two. 
If the dispute is one involving the membership or interests of 
a labor organization, such organization may, according to the 
provisions of a number of statutes, have representation on the 
board. 

Mediation is the attempt to procure an agreement between the 
parties by such mutual concessions as consideration and advice 
may result in. It is made the duty of nearly all the state boards 
to attempt mediation when information is received of actual or 
threatened difficulties. Arbitration involves a hearing of the 
parties and an award based on the apparent equities of the case. 
This will not be usually undertaken except on the request of the 
parties or of one of them, and is binding only as assented to by 
both parties in the application or consent for submission. Ap- 
plicants are obligated to maintain unchanged the status of em- 

i Cal., Acts 1891, ch. 51 ; Conn., G.S., sees. 4708-4713 ; 111., R.S., eh. 10, 
sees. 19-26 ; Mass., Acts 1909, ch. 514, sees. 10-16 ; Minn., R.L., sees. 1828- 
1834; N.Y., C.L., ch. 31, sees. 140-148; Ohio, Gen. Code, sees. 1059-1079. 

a Kans., G.S., sees. 332-341 ; Md., Pub. G. L., Art. 7, sees. 1-6, Acts 1904, 
ch. 313 ; Pa., B.P. Dig., p. 132, sees. 58, 67-70. 

» Cal., Mass., Minn., N.Y., etc. 

4 Mass., Ohio. * Minn., N.Y. 



LABOR DISPUTES 333 

ployment conditions until the determination of the board can be 
reached. Provision is made in most instances for the attendance 
of witnesses to be enforced by subpoenas, and one or all the 
members of the boards are authorized to administer oaths in 
respect of the matters connected with the performance of their 
duties. It is provided in some statutes that persons disobeying 
the subpoenas or refusing to answer the questions propounded 
by the board shall be certified to a court of the county or district 
and punished for contempt. In this connection may be noted 
a decision of the supreme court of Missouri 1 declaring this 
provision of the statute of that state unconstitutional and void, 
since the court has no power to exercise such a prerogative ex- 
cept in administering justice in cases before it in its own juris- 
diction, and cannot so act in behalf of any other body or tribunal, 
even another court. The court did not dispute, however, the 
power of the legislature to make a refusal to testify a misde- 
meanor, punishable by fine and imprisonment by a court of 
competent jurisdiction. 2 

The methods proposed for enforcing obedience to awards by 
the boards are various. Some statutes depend upon publicity 
alone, though in others they undertake to give the decisions the 
effect of a judgment of a court of law, to be enforced by execu- 
tion; while in others, disobedience is made punishable as for 
contempt of court. It is to be borne in mind that these pro- 
visions apply only when there has been an agreement to submit 
the question and to abide by the awards of the boards, there 
being no statute that provides for actual compulsory arbitra- 

i State v. Ryan, 182 Mo. 349, 81 S.W. 435. 

1 See Interstate Commerce Commission v. Brimson, 154 U.S. 447, 15 Sup. Ct. 
19, as to the power of a commission to call on a court to use its powers to secure 
the giving of testimony. 



334 LAW OF THE EMPLOYMENT OF LABOR 

tion and the acceptance of awards. But even so, the power of 
a court to take over and enforce the findings of such a tribunal, 
whether this enforcement is to be by means of contempt pro- 
ceedings or otherwise, is of at least doubtful feasibility under 
the controlling provisions of the constitutions of the various 
states and of the United States. 

An instance of an attempt to combine functions appears in a 
statute of Kansas, 1 which undertook to establish a " court of 
visitation," with jurisdiction over the operations of railroads. 
This court was to have power to make and enforce orders to the 
extent of appointing a receiver for any road not complying 
therewith. It was also authorized to issue orders and compel 
obedience thereto in cases of disputes affecting railroad em- 
ployees. This law was declared unconstitutional by both state 
and federal courts as being an attempt to confer on a single 
body legislative, administrative, and judicial powers, contrary 
to the provisions of the constitution. 2 

The costs of hearing before these boards are usually to be met 
by the state, though in some states the parties having recourse 
to the boards, or in whose behalf they are formed, are charged 
with the costs, their apportionment being a part of the award 
which it is the duty of the board to make. 

From the nature of the tribunals and the objects for which they 
are created, it is natural that there should have been but little 
judicial consideration given to the laws establishing them or to the 
operations of the boards themselves. The statute of Michigan 3 

i Acts 1898-9, ch. 28. 

* State v. Johnston, 61 Kans. 803, 60 Pac. 1068 ; Western Union Tel. Co. v 
Myatt, 90 Fed. 335. 

3 C.L., sees. 559-568, as amended by act No. 69, Acts 1903 ; repealed May 1, 
1911. 



LABOR DISPUTES 335 

provided for a state board appointed by the governor. Each 
arbitrator could administer oaths, and the secretary, not a mem- 
ber of the board, might, under the direction of the court, sub- 
poena witnesses, administer oaths, and compel the production 
of books, papers, and documents, the same as courts of record. 
The constitution of the state provides that "the legislature 
may establish courts of conciliation with such powers and 
duties as shall be prescribed by law." No provision was made 
for the enforcement of awards, and the submission of disputes 
was of course voluntary. In a case 1 in which the constitutional- 
ity of the statute was challenged, it was upheld by the supreme 
court of the state. As the case was presented it involved the 
validity of an order for a rehearing, one of the parties to an 
arbitration having secured such an order because of dissatis- 
faction with the award. The court held that the law gave the 
board no power beyond that of rendering and filing a decision, 
and that in granting a rehearing it had exceeded its authority. 
In another case 2 involving the same law, where there had been 
a submission under an agreement to abide by the decision reached 
in reference to prices, it was contended by one of the parties 
that an award substituting piece rates for wages by the day 
exceeded the authority of the board under the terms of sub- 
mission. The supreme court held that if the board had in fact 
exceeded the terms of submission, the contention would be a 
valid one, but since the question was one of prices, and evidence 
as to both time and piece rates had been heard without objec- 
tion, the court had not exceeded its powers. Another point in 
question was the construction to be put on a proviso to the 

1 Renaud v. State Court of Mediation, etc., 124 Mich. 648, 83 N.W. 620. 
' Pingree v. State Court of Mediation, etc., 130 Mich. 229, 89 N.W. 943. 



336 LAW OF THE EMPLOYMENT OF LABOR 

effect that decisions should be rendered within ten days after the 
hearing. The supreme court construed this as directory only, 
and not mandatory, and a delay of twelve days additional was 
held, in the circumstances, not to invalidate the award. 

The statute of Louisiana l was enacted under the authority 
granted to the legislature by the constitution "to pass such laws 
as may be proper and necessary to decide differences by arbitra- 
tion." It provides for efforts at conciliation in cases of labor 
disputes on the application of the parties, or either of them, 
or of the mayor of a city or of the judge of a district court. No 
provision is made for the enforcement of any finding of the 
board, but if its efforts at mediation fail, its conclusions are to be 
recorded on its books and also at once made public. In a case 2 
in which a request for intervention had been made by an as- 
sociation claiming to represent the employees of a street railway 
company (which claim the company denied), the company 
refused to join in the request, and asked for an injunction to 
restrain the board from making any decision, on the ground that 
such action would cause trouble and dissension among its em- 
ployees. Irregularities were asserted, and the need of inter- 
vention denied. The mayor of the city had sent a statement 
as to strained conditions and suggested an investigation. The 
supreme court of the state held that no restraint by injunction 
would be proper on a suggestion of the mere apprehension of 
injury, and that before it could act on questions of alleged 
irregularity they should be argued before the board and de- 
cided upon by it. The board was said to be one of conciliation, 
with no power but to form and record a decision, and without 

i Acts 1894,'No.'139. 

• Railroad Co. v. State Board of Arbitration, 47 La. Ann. 874, 17 So. 418. 



LABOR DISPUTES 337 

judicial function. It is not bound by technical rules of legal 
procedure, but must conform to the statute under which it 
exists, and should "observe the broad rules of law and equity 
without which a decision cannot be just." 

The federal statute relative to mediation and arbitration, 1 
popularly known as the Erdman Act, relates only to common 
carriers and their officers, agents, and employees engaged in 
interstate commerce, except masters of vessels and seamen. 
The act provides for a commission consisting of a member of 
the Interstate Commerce Commission or of the Court of Com- 
merce, designated for this duty by the President, 2 and the 
United States Commissioner of Labor. This commission is to 
exercise its functions as a mediator on the request of either party 
to a controversy between the carrier and its employees, concern- 
ing wages, hours of labor, or conditions of employment. If 
mediation and conciliation fail to lead to an amicable settlement 
of the difficulty, the commission is to at once endeavor to bring 
about an arbitration of the controversy. The board of arbitra- 
tion is to consist of three members, one named by the company, 
one by the labor organization representing the employees af- 
fected, and the third by the first two ; if the persons named by 
the parties fail to nominate the third member within five days 
from their first meeting, the commissioners for mediation may 
name him. 

Submission to arbitration is by stipulations signed by both 
parties, who agree under liability for damages to maintain the 

1 U.S. Comp. Stat., p. 3205, 30 Stat. 424. 

'Prior to the act of March 4, 1911 (36 Stat. 1397), making this provision 
as to designation by the President, the chairman of the Interstate Commerce 
Commission was fixed upon by the law as a member of the commission of media- 
tion. 

z 



338 LAW OF THE EMPLOYMENT OF LABOR 

existing status pending the decision of the board, by which they 
promise to abide. Equity may enforce the award so far as its 
powers extend. It has already been noted that equity cannot 
compel the performance of a labor contract against the will of 
any person. Dissatisfaction with the award is not to be a ground 
for withdrawal or discharge from employment within three 
months from its rendition unless the party wishing to terminate 
the relation gives the other party thirty days' notice in writing. 
Awards continue in effect for one year from the date of their 
going into operat on. The award is to be filed in the clerk's 
office of a circuit court of the United States within thirty days 
from the appointment of the third arbitrator, and is to go into 
effect and judgment be entered upon it within ten days from 
the date of its filing unless exceptions for matter of law are filed, 
in which case the operation of the award is suspended until 
determination is made by the court as to the exceptions. This 
decision is to become the basis of a judgment at the expiration 
of ten days unless within that time an appeal is taken to a cir- 
cuit court of appeals. 

There is little from which to determine the judicial construc- 
tion of this act. A case involving the determination by arbi- 
trators of four points in issue between a railroad company and 
an order of telegraph operators x resulted in objections by the 
telegraphers to the award in two points, and a request for an 
entry of judgment as to the remaining two points. The first 
item submitted was as to whether the members of the 
telegraphers' order employed by the company should "legislate 
for" or act in behalf of its train dispatchers in the matter of 
wages and in arbitration proceedings. On this point the ar- 

1 In re Southern Pacific Co., 155 Fed. 1001. 



LABOR DISPUTES 339 

bitrators decided in the negative, though the train dispatchers 
were for the most part members of the order and had voted to 
authorize the operators to so act in their behalf. The arbi- 
trators rejected the contention of the organization that only the 
question of agency was submitted, since no mere matter of 
simply determined fact would have been referred for decision, 
but that the fair understanding of the submission was as to the 
question of principle or policy affecting the relations of the 
parties and the methods of conducting the dealings of the em- 
ployer with its dispatchers ; and on a showing by the company 
that the duties of dispatchers were essentially different from 
those of operators, and that the two bodies of employees were 
generally classed as distinct, the award of the arbitrators was 
affirmed. The second contention was that a specific portion of 
the award was not responsive to the terms of the submission. 
This the court found to be well founded, and the plea of the 
company to be allowed to offer an interpretation of the clause 
of the submission under consideration was refused, the court 
holding that where there was no ambiguity there was no room 
for interpretation. It was said that the act providing for ar- 
bitration put the proceedings on no different footing from that 
of common-law arbitrations, i.e., that they rest entirely on the 
agreements made by the parties, from which alone the arbitrators 
derive their authority. "While the proceeding is judicial in its 
character, the relation of the parties is purely a contractual one ; 
and in no respect, other perhaps than in the application of the 
rules of evidence, does the proceeding partake of the nature of a 
civil action." The rules that govern are therefore those that 
relate to the construction and interpretation of contracts rather 
than to pleadings in a suit at law ; so that if any award is not 



340 LAW OF THE EMPLOYMENT OF LABOR 

responsive to the terms of submission as they would be ordinarily 
understood, it is not binding upon the parties. 

As to the request for entry of judgment on the uncontro verted 
portions of the award, the court ruled that, under the provisions 
of the act governing exceptions and appeals, no judgment could 
be entered prior to ten days after the determination of the ex- 
ceptions; and that moreover the general rules applicable in 
proceedings of this sort did not provide for the enforcement of 
awards by piecemeal, since each item would doubtless be decided 
in contemplation of all the others, so that while formally sepa- 
rable, the award must as a matter of fact be regarded as a unit, 
and indivisible for purposes of enforcement. 



APPENDIX 

Following is the Field Code (see sec. 4), here reproduced as 
presenting in a concise form the general rules of the common 
law governing the employment of labor. The numbering of the 
sections is that used in the Civil Code of Montana, 1895. 

Section 2650. The contract of employment is a contract 
by which one, who is called the employer, engages another, who 
is called the employee, to do something for the benefit of the 
employer or of a third person. 

Sec. 2660. An employer must indemnify his employee, except 
as prescribed in the next section, for all that he necessarily ex- 
pends or loses in direct consequence of the discharge of his duties 
as such, or of his obedience to the directions of the employer, 
even though unlawful, unless the employee, at the time of obey- 
ing such directions, believed them to be unlawful. 

Sec. 2661. An employer is not bound to indemnify his em- 
ployee for losses suffered by the latter in consequence of the 
ordinary risks of the business in which he is employed. 

Sec. 2662. An employer must in all cases indemnify his 
employee for losses caused by the former's want of ordinary 
care. 

Sec. 2670. One who, without consideration, undertakes to 
do a service for another, is not bound to perform the same, but 
if he actually enters upon its performance, he must use at least 
slight care and diligence therein. 

Sec. 2671. One who, by his own special request, induces 
another to intrust him with the performance of a service, must 
perform the same fully. In other cases, one who undertakes a 
gratuitous service may relinquish it at any time. 

Sec. 2672. A gratuitous employee, who accepts a written 
power of attorney, must act under it so long as it remains in 
force, or until he gives notice to his employer that he will not do 
so. 

341 



342 LAW OF THE EMPLOYMENT OF LABOR 

Sec. 2673. One who, for a good consideration, agrees to serve 
another, must perform the service, and must use ordinary care 
and diligence therein, so long as he is thus employed. 

Sec. 2674. One who is employed at his own request to do 
that which is more for his own advantage than for that of his 
employer, must use great care and diligence therein to protect 
the interest of the latter. 

Sec. 2675. A contract to render personal service, other than 
a contract of apprenticeship, * * * cannot be enforced 
against the employee beyond the term of two years from the 
commencement of service under it ; but if the employee volun- 
tarily continues his service under it beyond that time, the con- 
tract may be referred to as affording a presumptive measure of 
the compensation. 

Sec. 2676. An employee must substantially comply with all 
the directions of his employer concerning the service on which 
he is engaged, except where such obedience is impossible or un- 
lawful, or would impose new and unreasonable burdens upon 
the employee. 

Sec. 2677. An employee must perform his service in conform- 
ity to the usage of the place of performance, unless otherwise 
directed by his employer, or unless it is impracticable, or mani- 
festly injurious to his employer to do so. 

Sec. 2678. An employee is bound to exercise a reasonable 
degree of skill, unless his employer has notice, before employing 
him, of his want of skill. 

Sec. 2679. An employee is always bound to use such skill as 
he possesses, so far as the same is required, for the service speci- 
fied. 

Sec. 2680. Everything which an employee acquires by virtue 
of his employment, except the compensation, if any, which is 
due to him from his employer, belongs to the latter, whether 
acquired lawfully or unlawfully, or during or after the expiration 
of the term of his employment. 

Sec. 2681. An employee must, on demand, render to his 
employer just accounts of all his transactions in the course of 
his service, as often as may be reasonable, and must, without 
demand, give prompt notice to his employer of everything which 
he receives for his account. 

Sec. 2682. An employee who receives anything on account 
of his employer, in any capacity other than that of a mere ser- 
vant, is not bound to deliver it to him until demanded, and is 



APPENDIX 343 

not at liberty to send it to him from a distance, without demand, 
in any mode involving greater risk than its retention by the 
employee himself. 

Sec. 2683. An employee who has any business to transact 
on his own account, similar to that intrusted to him by his 
employer, must always give the latter the preference. 

Sec. 2684. An employee who is expressly authorized to 
employ a substitute is liable to his principal only for want of 
ordinary care in his selection. The substitute is directly re- 
sponsible to the principal. 

Sec. 2685. An employee who is guilty of a culpable degree 
of negligence is liable to his employer for the damage thereby 
caused to the latter ; and the employer is liable to him, if the 
service is not gratuitous, for the value of such services only as 
are properly rendered. 

Sec. 2686. Where service is to be rendered by two or more 
persons jointly, and one of them dies, the survivor must act 
alone, if the service to be rendered is such as he can rightly 
perform without the aid of the deceased person, but not other- 
wise. 

Sec. 2700. Every employment in which the power of the em- 
ployee is not coupled with an interest in its subject is terminated 
by notice to him of : 

1. The death of the employer ; or, 

2. His legal incapacity to contract. 

Sec. 2701. Every employment is terminated : 

1. By the expiration of its appointed term. 

2. By the extinction of its subject. 

3. By the death of the employee ; or, 

4. By his legal incapacity to act as such. 

Sec. 2702. An employee, unless the term of his service has 
expired, or unless he has a right to discontinue it at any time 
without notice, must continue his service after notice of the 
death or incapacity of his employer, so far as is necessary to pro- 
tect from serious injury the interests of the employer's successor 
in interest, until a reasonable time after notice of the facts has 
been communicated to such successor. The successor must 
compensate the employee for such service according to the 
terms of the contract of employment. 

Sec. 2703. An employment having no specified term may 
be terminated at the will of either party, on notice to the other, 
except where otherwise provided by this title. 



344 LAW OF THE EMPLOYMENT OF LABOR 

Sec. 2704. An employment, even for a specified term may 
be terminated at any time by the employer, in case of any will- 
ful breach of duty by the employee in the course of his employ- 
ment, or in case of his habitual neglect of his duty or continued 
incapacity to perform it. 

Sec. 2705. An employment, even for a specified term, may 
be terminated by the employee at any time, in case of any will- 
ful or permanent breach of the obligations of his employer to 
him as an employee. 

Sec. 2706. An employee, dismissed by his employer for good 
cause, is not entitled to any compensation for services rendered 
since the last day upon which a payment became due to him 
under the contract. 

Sec. 2707. An employee who quits the service of his employer 
for good cause is entitled to such proportion of the compensation 
which would become due in case of full performance as the 
services which he has already rendered bear to the services which 
he was to render as full performance. 

Sec. 2720. A servant is one who is employed to render per- 
sonal service to his employer, otherwise than in the pursuit of 
an independent calling, and who in such service remains entirely 
under the control and direction of the latter, who is called his 
master. 

Sec. 2721. A servant is presumed to have been hired for such 
length of time as the parties adopt for the estimation of wages. 
A hiring at a yearly rate is presumed to be for one year ; a hiring 
at a daily rate, for one day ; a hiring by piecework, for no speci- 
fied term. 

Sec. 2722. In the absence of any agreement or custom as to 
the term of service, the time of payment, or rate or value of 
wages, a servant is presumed to be hired by the month, at a 
monthly rate of reasonable wages, to be paid when the service 
is performed. 

Sec. 2723. Where, after the expiration of an agreement re- 
specting the wages and the term of service, the parties continue 
the relation of master and servant, they are presumed to have 
renewed the agreement for the same wages and term of service. 

Sec. 2724. The entire time of a domestic servant belongs to 
the master ; and the time of other servants to such extent as is 
usual in the business in which they serve, . . . 

Sec. 2725. A servant must deliver to his master, as soon as 
with reasonable diligence he can find him, everything that he 



APPENDIX 345 

receives for his account, without demand ; but he is not bound, 
without orders from his master, to send anything to him through 
another person. 

Sec. 2726. A master may discharge any servant, other than 
an apprentice, whether engaged for a fixed term or not : 

1. If he is guilty of misconduct in the course of his service, or 
of gross immorality, though unconnected with the same; or, 

2. If, being employed about the person of the master, or in a 
confidential position, the master discovers that he has been 
guilty of misconduct, before or after the commencement of his 
service, of such a nature that if the master had known or con- 
templated it, he would not have so employed him. 

Sec. 2760. One who officiously, and without the consent of 
the real or apparent owner of a thing, takes it into his possession 
for the purpose of rendering service about it, must complete such 
service, and use ordinary care, diligence, and reasonable skill 
about the same. He is not entitled to any compensation for his 
service or expenses, except that he may deduct actual and neces- 
sary expenses, incurred by him about such service, from any 
profits which his service has caused the thing to acquire for its 
owner, and must account to the owner for the residue. 



LIST OF CASES CITED 



Adair v. United States, 5, 193, 234. 

Adams v. Brennan, 241. 

Adams v. Fitzpatrick, 11. 

iEtitus v. Coal Co., 99. 

Aikens v. Wisconsin, 245, 257, 262, 274, 

292. 
Alabama G. S. R. Co. v. Thompson, 204. 
Alaska Treadwell Gold Min. Co. v. 

Whelan, 161. 
Albro v. Jaquith, 199. 
Alexander M. Lawrence, The, 47. 
Alexander v. Carolina Mills, 105. 
Alfson v. Bush, 122. 
Allen v. Boston & M. R. Co., 142. 
Allen v. Compress Co., 28. 
Allen v. Flood, 36, 37. 
Allen v. Goodwin, 161 
Allgeyer v. Louisiana, 4. 
Allis-Chalmers Co. v. Iron Molders' 

Union, 220, 221, 222, 261, 262, 277, 

279, 318, 325. 
Althorf v. Wolfe, 202. 
American Car & Foundry Co. v. Ar- 

mentraut, 104, 105, 126. 
American Fed. of Labor v. Bucks Stove 

& Range Co., 282. 
American Steel & Wire Co. v. Wire 

Drawers' Union, 221, 308, 313, 316. 
Anderson v. Drop Forging Co., 324. 
Anderson v. Michigan C. R. Co., 130. 
Andrews, Ex parte, 80. 
Andricus' Adm'r. v. Coal Co., 133. 
Angle v. Chicago R. Co., 35, 298. 
Angle v. Hanna, 31. 

Anoka Lumber Co. v. Fidelity & Casu- 
alty Co., 182. 
Anstee v. Ober, 27. 
Antioch Coal Co. v. Rockey, 134. 



A. R. Barnes & Co. v. Berry (2 cases), 

237, 238, 268, 275, 276, 320. 
A. R. Barnes & Co. v. Typographical 

Union, 221, 222, 278, 280, 311, 312, 

321, 329, 330. 
Armistead v. Chatters, 40. 
Arms v. Ayer, 89, 93. 
Armstrong v. State, 79. 
Arnold v. Yanders, 123. 
Arthur v. Oakes, 13, 213, 216, 253, 257, 

258, 259, 263, 268, 272, 276, 287, 

307, 319, 326. 
Ash v. Guie, 223. 
Asher v. Tomlinson, 16. 
Atchison, T. & S. F. R. Co. v. Brown, 34. 
Atchison, T. & S. F. R. Co. v. Gee, 278, 

321. 
Atchison, T. & S. F. R. Co. v. Penfold, 

135. 
Atkin v. Kansas, 7, 8, 50, 78. 
Atkins v. Fletcher Co., 5, 217, 220, 281, 

317. 
Atkinson v. Woodmansee, 61. 
Atlanta v. Stein, 241, 250. 
Atlantic Coast Line R. Co. v. Beazley, 

147, 174. 
Atlantic Coast Line R. Co. v. State, 92. 
Attleboro Mfg. Co. v. Insurance Co., 

183. 
Attorney-General v. Ice Co., 308. 
Attoyac River Lumber Co. v. Payne, 69. 
Au v. New York, L. E. & W. R. Co., 166. 
Aubry, In re, 114. 

Aultman & Taylor Co. v. Smith, 56. 
Avent-Beattyville Coal Co. v. Com- 
monwealth, 65. 
Babcock v. Appleton Mfg. Co., 33. 
Babcock, etc., Co. v. Moore, 9. 



347 



348 



LIST OF CASES CITED 



Bacon v. Sewing Machine Co., 24. 

Bagley v. Bates, 3. 

Bailey v. Alabama, 18, 21. 

Bailey v. Master Plumbers, 227, 254. 

Bailey v. State, 18. 

Baker v. Insurance Co. (2 cases), 36, 

293, 294. 
Baker v. Portland, 119. 
Baldwin v. Association, 317. 
Baldwin v. Marqueze, 30. 
Baltimore & O. R. Co. v. Baugh, 154, 

155, 157. 
Baltimore <fe O. R. Co. v. Ray, 148. 
Baltimore & P. R. Co. v. Jones, 139. 
Baltimore & P. R. Co. v. Mackey, 134. 
Baltimore, etc., Co. v. Stankard, 147. 
Barbour v. Albany Lodge, 219. 
Barnes & Co. v. Berry (2 cases), 237, 

238, 268, 275, 276, 320. 
Barnes & Co. v. Chicago Typographical 

Union, 221, 222, 278, 280, 311, 312, 

321, 329, 330. 
Baron v. Placide, 29. 
Barr v. Essex Trades Council, 286, 306, 

307. 
Barstow v. Old Colony R. Co., 177. 
Bartholomew v. Jackson, 1. 
Bass v. Chicago & N. W. R. Co., 203. 
Bass v. Doermann, 64. 
Beach v. Mullin, 10, 12. 
Beck v. Railway Teamsters' Prot. 

Union, 277, 278, 286, 288, 289, 309, 

316. 
Bell v. Hiner, 64. 
Benz v. Kremer, 90. 
Berea Stone Co. v. Kraft, 166. 
Bernard v. Liipping, 81. 
Berry v. Donovan, 216, 239, 240, 244, 

262, 266, 297, 303, 322. 
Berry v. Wallace, 3. 
Bessette t>. Conkey, 313, 323, 329. 
Bessette v. People, 1 14. 
Bessette, In re, 313, 329. 
Birlant v. Cleckley, 47. 
Bixby v. Dunlap, 35. 
Blanchard v. District Council, 232, 304. 



Bodell v. Brazil Block Coal Co., 129. 
Bodwell t>. Manufacturing Co., 173. 
Bohn Mfg. Co. v. Hollis, 37, 257, 284, 

285. 
Bonaud v. Genesi, 312. 
Booth v. Burgess, 261, 320. 
Booth v. People, 8. 
Boston Glass Co. v. Binney, 39. 
Boston & A. R. Co. v. Mercantile Trust 

& Deposit Co., 182. 
Boutwell v. Marr, 214, 215, 229, 236, 

246, 274, 286. 
Bovard v. Ford, 45. 
Boyd v. State, 314. 
Boyer v. Western Union Tel. Co., 17, 

234, 293. 
Brace Bros. v. Evans, 282, 286. 
Braceville Coal Co. v. People, 53. 
Bradley v. New York C. R. Co., 177. 
Bradley v. State, 325. 
Braman v. Foss, 317. 
Brannan v. Hoel, 204. 
Branson v. Industrial Workers of the 

World, 220, 222, 223, 282, 287, 292, 

301, 304. 
Braswell v. Cotton Oil Mill Co., 106. 
Bredeson v. Lumber Co., 97. 
Breeden v. Frankfort, etc., Ins. Co., 181. 
Brennan v. Hatters, 216, 228, 236, 262, 

267, 297, 304. 
Britton v. Turner, 12, 16. 
Brookfield v. Drury College, 10. 
Brower v. Northern P. R. Co., 199. 
Brown v. Jacobs' Pharmacy Co., 236. 
Brown v. Stoerkel, 219, 220, 226. 
Brunnett v. Clark, 81. 
Bryant v. Skillman Hardware Co., 102. 
Buckingham v. Canal Co., 9. 
Bucks Stove & Range Co. v. American 

Fed. of Labor (2 cases), 257, 288, 

293, 312. 
Buffalo Forge Co. v. Mutual Security 

Co., 272. 
Buela v. Newman, 249. 
Burdett v. Commonwealth, 324. 
Burke v. Fay, 229, 240, 286, 301. 



LIST OF CASES CITED 



349 



Burnetta v. Marceline Coal Co., 237, 

238. 
Burns v. Marland Mfg. Co., 35. 
Burt v. Lathrop, 219. 
Burtis v. Thompson, 25. 
Butler v. Townsend, 127. 
Butterfield v. Ashley, 38. 

Calkins v. Mining Co., 82. 

Callan v. Wilson, 254. 

Callopy v. Atwood, 97. 

Camp v. Baldwin-Melville Co., 27. 

Campbell v. Cooper, 38, 39. 

Campbell v. Johnson, 231, 232, 297. 

Capron v. Strout, 10. 

Carew v. Rutherford, 71, 213, 215, 229, 

240, 266, 301, 304. 
Carnig v. Carr, 9. 

Carpenter ©.Chicago <fc E. I. R. Co., 182. 
Carr v. Coal Co., 31. 
Carr v. District Court, 311. 
Carroll v. East Tennessee, Va. & Ga. 

R. Co., 136. 
Carson v. Calhoun, 46, 81. 
Carson v. Ury, 248. 
Carter v. .-Etna Life Ins. Co., 180. 
Carter v. Oster, 300. 
Carter's Case, 324. 
Casey v. Typographical Union, 217, 

286, 289, 309. 
Caspar v. Lewin, 97. 
Caven v. Coleman, 114. 
Chamberlain v. Stove Works, 10. 
Champion v. Hannahan, 231. 
Chapman v. Berry, 56. 
Cheadle v. State, 324. 
Chemical Works v. Pender, 11. 
Chesapeake & O. R. Co. v. Dixon, 202, 

204. 
Chesapeake & O. R. Co. v. Rowsey's 

Adm'r, 92, 129. 
Chicago v. Hulbert, 119. 
Chicago <fe A. R. Co. v. Johnson, 152. 
Chicago & A. R. Co. v. Myers, 152. 
Chicago, B. & Q. R. Co. v. McGuire, 9, 
148. 



Chicago, B. A Q. R. Co. v. Miller, 147. 
Chicago, B. & Q. R. Co. v. Wolfe, 196. 
Chicago-Coulterville Coal Co. v. Fidel- 
ity & Casualty Co., 183. 
Chicago Federation of Musicians v. 

Musicians' Union, 230, 327. 
Chicago, M. & St. P. R. Co. v. Ross, 

155, 156, 158, 165. 
Chicago, M. & St. P. R. Co. v. Solan, 

147. 
Chicago, R. I. & P. Co. v. State, 91. 
Chicago, R. I. & P. R. Co. v. Zernecke, 

196. 
Chicago Typothetse v. Franklin Union, 

329. 
Chicago, W. & V. Coal Co. v. People, 90. 
Chicago, etc., R. Co. v. Gildersleeve, 

324. 
Child v. Boyd, etc., Mfg. Co., 29. 
Chinese Exclusion Case, 120. 
Chipley v. Atkinson, 35. 
Choctaw, O. & G. R. Co. v. McDade, 

127. 
Chrestman v. Russell, 40. 
Christensen v. People, 244. 
Cigar Makers' I. U. v. Goldberg, 249. 
Cigar Makers' Union v. Conhaim, 247. 
Cincinnati, N. O. & T. P. R. Co. v. 

Hill's Adm'r, 162. 
City of Alma v. Loehr, 307. 
City of St. Louis v. Gloner, 282, 322. 
Clark v. Fensky, 48. 
Clark v. Gilbert, 31. 
Clark v. Smith, 47. 
Clark v. State, 49. 
Clark's Case, 13. 

Cleland v. Anderson, 218, 222, 253. 
Cleveland v. Construction Co., 79. 
Cleveland, C. & C. R. Co. v. Keary, 163. 
Cleveland, C. C. & St. L. R. Co. v. 

Jenkins, 33, 34. 
Clothing Co. v. Watson, 288, 309. 
Clune v. United States, 258. 
Clyatt v. United States, 19. 
Coal Co. v. Costello, 45. 
Coal Co. t». Lamb, 110. 



350 



LIST OF CASES CITED 



Coe v. R. Co., 64. 

Cceur d'Alene Consol. Mining Co. v. 

Miners' Union, 217, 289, 306, 307, 

308, 309. 
Coffee v. New York, etc., R. Co., 170. 
Coffeyville Brick & Tile Co. v. Perry, 

234. 
Cohn v. People, 248. 
Collins v. Hazelton, 24. 
Collins v. Iron Co., 3. 
Collins Ice Cream Co. v. Stephens, 79. 
Columbia Paper Stock Co. v. Fidelity 

Co., 180, 182. 
Comben v. Belleville Stone Co., 142. 
Comerford v. Street Ry. Co., 16. 
Commonwealth v. Beatty, 102. 
Commonwealth v. Butler, 45. 
Commonwealth v. Clark, 234. 
Commonwealth v. Dunn, 52. 
Commonwealth v. Hamilton Mfg. Co., 

101, 103. 
Commonwealth v. Hillside Coal Co., 70. 
Commonwealth v. Hunt, 71, 267. 
Commonwealth v. Perry, 50. 
Commonwealth v. St. Germans, 2. 
Commonwealth v. Shaleen, 112. 
Conkey v. Russell, 259, 328. 
Connett v. Hatters, 297, 320, 321. 
Connolly v. Bolster, 180. 
Connolly v. Pipe Co., 253. 
Consol. Coal Co. v. Lundak, 144. 
Consol. Coal Co. v. Seniger, 111, 134. 
Consol. Coal Co. v. Wombacher, 162. 
Consol. K. C. Smelting & Refining Co. 

v. Peterson, 166. 
Consol. Mining Co. v. Bateman, 141. 
Coombs v. New Bedford Cordage Co., 

138. 
Cooper v. Stronge & Warner Co., 30. 
Coops v. Lake Shore & M. S. R. Co., 

151. 
Corgan «. Coal Co., 28. 
Costigan v. Mohawk R. Co., 24. 
Cote v. Murphy, 218. 
Cotton Jammers, etc. v. Taylor, 225, 

228, 231. 



Counsell v. Hall, 173. 

County Commissioners v. Aspen Min. 

Co., 205. 
Crall v. Toledo & O. C. R. Co., 35. 
Crawford v. Publishing Co., 28. 
Crawford v. Wick, 226. 
Crescent Horseshoe Co. v. Eynon, 27. 
Crisp v. R. Co., 55. 
Crispin v. Babbitt, 166. 
Cronemillar v. Milling Co., 10, 25. 
Crump v. Commonwealth, 282, 288. 
Crystal Ice Co., Sherlock, 166. 
Cullen v. Norton, 178. 
Cumberland Glass Mfg. Co., v. Glass 

Bottle Blowers, 216, 263, 271, 279, 

315, 322. 
Cumberland Glass Mfg. Co. v. State, 

65, 66. 
Curley v. Hoff, 163. 
Curran v. Fleming, 56. 
Curran v. Galen, 214, 216, 239, 242, 

252, 262, 263, 267, 271, 274, 297, 302, 

304. 
Curtis v. A. Lehman Co., 27, 31. 
Cutter v. Gillette, 25. 

Daniel v. Swearengen, 38. 

Darsam v. Kohlmann, 104. 

Davidson v. Flour City Works, 97. 

Davidson v. Jennings, 61. 

Davidson v. State, 113. 

Davis v. Gray, 325. 

Davis v. Maxwell, 12, 15. 

Davis v. Mercer Lumber Co., 129. 

Davis v. Morgan, 30. 

Davis v. New England R. Pub. Co., 
294. 

Davis v. State, 234. 

Davis Coal Co. v. Polland, 145. 

Dayharsh v. Hannibal & St. J. R. Co., 
167. 

Dayton Coal & Iron Co. v. Barton, 66. 

Debs, In re, 214, 221, 222, 255, 306, 
308, 321, 323, 331. 

Deer Trail Consol. Min. Co. v. Casu- 
alty Co., 180. 



LIST OF CASES CITED 



351 



Delaware, etc., R. Co. v. Switchmen's 

Union, 236, 237, 275. 
Delk v. R. Co., 130. 
De Loraz v. McDowell, 26. 
De Minico v. Craig, 263, 265, 304, 307, 

317. 
Dempsey v. Chambers, 203. 
Deni v. P. R. Co., 122. 
Denver & R. G. R. Co. v. Gannon, 

93, 97, 145. 
Denver & R. G. R. Co. v. Norgate, 93, 

95, 141. 
Denver & R. G. R. Co. v. Reiter, 117. 
Deserant v. Cerillos Coal R. Co., 90. 
Detroit, etc., R. Co. v. State, 91. 
Diamond State Iron Co. v. Bell., 32. 
Dickey v. Linscott, 31. 
Dickey, Ex parte, 210. 
Dingwall v. Association, 231. 
District of Columbia v. Brooke, 94. 
Dixon v. Poe, 67. 

Dobbin v. Richmond & D. R. Co., 162. 
Dobyns v. Yazoo & M. V. R. Co., 152. 
Dodge v. Favor, 3. 

Donald v. Chicago, B. & Q. R. Co., 148. 
Doolittle, In re, 325, 326. 
Doremus v. Hennessy, 246, 301. 
Dorsey v. State, 18. 
Douglas v. People, 113. 
Drayton, Ex parte, 19. 
Dubois v. Delaware & H. Canal Co., 47. 
Dudley v. Hurst, 306. 
Dugan v. Anderson, 15. 
Duncan v. Baker, 16. 
Dunn v. Moore, 15. 
Duquesne Distributing Co. v. Green- 

baum, 204. 
Durkin v. Kingston Coal Co., 110, 116, 

134, 199. 

East Tenn., Va. & Ga. R. Co. v. Duf- 

field, 144. 
Echols v. Fleming, 27. 
Eden v. People, 79. 

Edwards v. Seaboard & R. R. Co., 11. 
Edwards' Adm'r. v. Lam., 179. 



Efron v. Clayton, 25. 

Ehrlich v. Willenski, 223, 224. 

Ehrmantraut v. Robinson, 224. 

Eilenbecker v. Plymouth Co., 323. 

Elder v. Whitesides, 252. 

Eldorado Coal & Coke Co. v. Swan, 99. 

El Paso & N. E. R. Co. v. Gutierrez, 196. 

Emerson v. Huss, 325. 

Emmens v. Ederton, 9. 

Employing Printers' Club v. Doctor 

Blosser Co., 298, 302. 
Erdman v. Mitchell, 229, 267, 296, 316, 

320. 
Erickson v. American Steel & Wire Co., 

132. 
Ertz v. Produce Exchange, 37, 285. 
Evans v. R. Co., 11. 
Evansville Hoop & Stave Co. v. Bailey, 

93. 
Evarts v. St. Paul, M. &. M. R. Co., 

177. 
Everett-Waddy Co. v. Typographical 

Union, 273, 276, 279, 307. 
Ewing v. Jansen, 30. 

Falconio v. Larsen, 64. 

Faren v. Sellers, 162. 

Farmer v. Kearney, 179. 

Farmers' L. & T. Co. v. Northern P. R. 

Co., 216, 318. 
Farweli v. Boston & W. R. Corp., 202. 
Fawcett v. Cash, 32. 
Felton v. Girardy, 176. 
Ferira v. Sayres, 32. 
Fewings v. Mendenhall, 269. 
Fidelity & Casualty Co. ». Lone Oak 

Cotton Oil & Gin Co., 183. 
Fischer v. State, 300. 
Fisher v. Walsh, 33, 270. 
Fitzgerald v. Paper Co., 73. 
Flaccus v. Smith, 216, 276, 296. 
Flaherty v. Longshoremen's Ben. Soc.i 

217, 226, 228. 
Fluker v. R. Co., 42. 
Flukes, In re, 57. 
Fogarty v. St. Louis Transfer Co., 166. 



352 



LIST OF CASES CITED 



Foley v. Pioneer Mining Co., 133. 

Folsom v. Lewis, 244, 265, 317. 

Ford v. State, 324. 

Forsyth v. McKinney, 29. 

Fort v. Whipple, 204. 

Ft. Wayne, etc., Traction Co. v. Roude- 

bush, 141. 
Fowler v. Armour, 26. 
Frank Unnewehr Co. v. Insurance Co., 

184. 
Frank v. Herold, 38, 216, 260, 271, 273, 

319. 
Frank v. Maternity, etc., Co., 11. 
Frank v. Newport Mining Co., 147. 
Franklin v. Lumber Co., 27. 
Franklin v. United R. & E. Co., 185. 
Franklin Union v. People, 217, 218, 329. 
Frary v. Rubber Co., 28. 
Fraser v. McConway & Torley Co., 121. 
Freeman v. Paper Mill Co., 128. 
Frorer v. People, 5, 70. 
F. R. Patch Mfg. Co. v. Capeless, 220, 

222, 304. 
F. R. Patch Mfg. Co. v. International 

Ass'n., 301, 304. 
Frye v. Gas & Electric Co., 181. 
Fuchs v. Koerner, 26. 
Fuller t>. Little, 26. 
Fulton v. Wilmington Star Mining Co., 

134. 
Furman v. Applegate, 42. 

Gagnon v. Machine Co., 141. 
Gallagher v. Manufacturing Co., 51. 
Galveston Oil Co. v. Thompson, 176. 
Garretzen v. Duenckel, 203. 
Gatzow v. Buening, 214, 227, 229, 252, 

304, 329. 
General Tire Repair Co. v. Price, 41. 
Geo. Jonas Glass Co. v. Glass Bottle 

Blowers (2 cases), 221, 278, 281, 

287, 315, 319, 322. 
George v. Clark, 141. 
George v. Railway Co., 141. 
Gibson v. Fidelity & Casualty Co., 36. 
Gill v. United States, 74. 



Gillespie v. People, 234. 

Gillis v. Space, 2. 

Glens Falls Portland Cement Co. v. 

Travelers' Ins. Co., 183. 
Glockner v. Hardware Mfg. Co., 97. 
Gmaehle v. Rosenberg, 170. 
Godcharles v. Wigeman, 66, 76. 
Goddard v. Foster, 1. 
Goldberg v. Stablemen's Union, 216, 

260, 271, 315, 316. 
Golden v. Coal Co., 110. 
Goldenstein v. Baltimore & O. R. Co., 

149. 
Goldfield Consol. Mines Co. v. Gold- 
field Miners' Union, 251, 259, 267, 

272, 273, 281, 319. 
Goldstein v. White, 15. 
Gompers v. Bucks Stove & Range Co. 

(3 cases), 309, 311, 312, 318, 323, 

326, 327, 328, 330. 
Gorman v. McArdle, 94. 
Gormley v. Clark, 317. 
Gottleib v. R. Co., 134. 
Gower v. Andrew, 3. 
Gray v. Building Trades' Council, 266, 

267, 285, 289, 290, 309, 316, 320. 
Green v. Brainerd & N. M. R. Co., 175. 
Green v. Felton, 227. 
Green v. Watson, 56. 
Grenada Lumber Co. v. Mississippi, 

254, 318. 
Grice, In re, 218. 
Griggs v. Swift, 31. 
Gulf, etc., R. Co. v. Ellis, 21, 61. 
Gulf, C. & S. F. R. Co. v. Schwabbe, 167. 
Guthrie v. Merrill, 73. 

Hackman v. Flory, 47. 
Hale v. State, 325. 
Haley v. Case, 173. 

Hall v. Emerson-Stevens Mfg. Co., 133. 
Hall Lace Co. v. Javes, 314. 
Hamblin v. Dinneford, 14. 
Hamilton v. Love, 25, 26, 29. 
Hammerstein v. Parsons, 219. 
Hammond Packing Co. v. State, 67, 68. 



LIST OF CASES CITED 



353 



Hanchett v. Chiatovich, 72. 

Hancock v. Yaden, 52. 

Haney ». Caldwell, 10, 11. 

Harbison v. Iron Co., 66, 67. 

Hardy v. Minneapolis & St. L. R. Co., 
167. 

Hare v. Mclntire, 199. 

Harmon v. Salmon Falls Mfg. Co., 3. 

Harmon v. State, 112. 

Harris v. Detroit Typographical Union, 
231. 

Harrison v. Sugar Refining Co., 13. 

Harrod v. Latham, 128. 

Hart v. Hess, 1. 

Haskins v. Royster, 36, 38. 

Hasselman Printing Co. v. Fry, 1, 14. 

Hatton v. Mountford, 28. 

Hawkins v. Gilbert, 15. 

Hays v. Mercier, 61. 

Heard v. Crum, 45. 

Henderson v. Koenig, 10. 

Henderson Bridge Co. v. McGrath, 47. 

Hendrix v. State, 40. 

Hennington v. State, 80. 

Henrietta Coal Co. v. Martin, 109, 111. 

Hetterman v. Powers, 248. 

Hewett v. Swift, 204. 

Hewitt v. Prime, 42. 

Hey v. Wilson, 289. 

Hey wood v. Tillson, 71. 

Higgins, In re, 219, 263, 326. 

Hightower v. State, 39. 

Hildebrand v. Art Co., 15, 16. 

Hill v. American Surety Co., 63. 

Hill v. Morey, 202. 

Hill v. Robeson, 31. 

Hillenbrand v. Building Trades' Coun- 
cil, 267. 

Hillsboro Nat. Bank v. Hyde, 73. 

Hillyard v. Crabtree, 199. 

Hilton v. Eckersley, 14, 236. 

Hinds v. Overacker, 199. 

Hitchman Coal Co. v. Mitchell, 276, 
296, 321. 

Hoadly v. International Paper Co., 81. 

Holden v. City of Alton, 250. 



Holden v. Hardy, 7, 8, 77, 90, 196. 

Holder v. Cannon Mfg. Co., 35. 

Hollenbeck v. Ristine, 37. 

Hollman, Ex parte, 19. 

Holshouser v. Denver Gas & El. Co., 

270. 
Home Mixture Guano Co. v. Insurance 

Co., 183. 
Hool v. Dorroh, 38, 39, 40. 
Hopkins v. Oxley Stave Co., 236, 268, 

287, 310, 322. 
Hopkins v. United States, 213. 
Horn v. Association, 10. 
Hotchkiss v. Godkin, 9. 
Hough v. Texas & P. R. Co., 141, 155. 
House Bill No. 203, In re, 51. 
Houston & T. C. R. Co. v. Burnet, 152. 
Hoveland v. National Blower Works, 

127. 
Hoven v. Employers' Liability Assur- 
ance Corp., 182, 183. 
Howard v. Illinois C. R. Co., 196. 
Howd v. Mississippi C. R. Co., 163. 
Hudson, The, 11. 
Hulse v. Bonsack Mach. Co., 74. 
Hundley v. Louisville & N. R. Co., 33, 

34, 294. 
Hunt v. Crane, 26. 
Hunt v. Otis Co., 33. 
Hurley v. Tucker, 61. 
Huskie v. Griffin, 35, 275. 
Hutson v. Missouri P. R. Co., 166. 
Huttig Sash & Door Co. v. Fuelle, 288, 

309, 311, 328. 
Hyde v. Woods, 219. 
Hyvonen v. Hector Iron Co., 112. 

Ideal Mfg. Co. v. Ludwig, 277, 327. 

Illinois C. R. Co. v. Josey's Adm'r., 
166. 

Inbusch v. Farwell, 220. 

Indiana, B. & W. R. Co. v. Dailey, 136. 

International, etc., R. Co. v. McDon- 
ald, 203. 

International Textbook Co. v. Weis- 
singer, 58. 



2a 



354 



LIST OF CASES CITED 



Interstate Commerce Commission v. 

Brimson, 333. 
Iron & Steel Co. v. Nichols, 13, 14. 
Iron Molders' Union v. Allis-Chalmers 

Co., 219, 221, 263, 273, 276, 277, 

279, 280, 290, 313, 322. 
Irvine v. Flint & P. M. R. Co., 152. 
Isaacs v. McAndrew, 15. 
Ives v. South Buffalo R. Co. (2 cases), 

196, 197. 

Jackson v. School District, 26. 

Jackson v. State (2 cases), 40, 115. 

Jacobs v. Cohen, 237, 240, 243, 303. 

Jacobs, In re, 5. 

James v. Allen Co., 26. 

Jarvis v. Peck, 13. 

Jeffersonville R. Co. v. Rogers, 203. 

Jenkins v. Fowler, 71. 

Jennings v. Camp, 12. 

Jensen v. Cooks' & Waiters' Union, 278. 

Jersey City Printing Co. v. Cassidy, 5, 
229, 274, 276, 287, 308, 316, 318, 319. 

Jetton-Dekle Lumber Co. v. Mather, 
227. 

Jewell v. Bolt & Nut Co., 144. 

J. F. Parkinson Co. v. Building Trades 
Council, 233, 274, 284, 287, 291. 

John C. Lewis Co. v. Scott, 26. 

Johnson v. Charleston & S. R. Co., 144. 

Johnson v. Goodyear Mining Co., 53, 
61, 67. 

Johnson v. Philadelphia R. Co., 147. 

Johnson v. Southern P. R. Co., 98, 135. 

Johnson, Lytle & Co. v. Spartan Mills, 
66. 

Johnston v. Barrills, 64. 

Joliet Mfg. Co. v. Dice, 74. 

Jonas Glass Co. v. Glass Bottle Blow- 
ers (2 cases), 221, 278, 281, 287, 315, 
319, 322. 

Jones v. Caramel Co., 129. 

Jones v. E. Van Winkle Gin & Ma- 
chine Works, 273, 277. 

Jones v. Hay, 1. 

Jones v. Jincey, 1. 



Jones v. Judd, 31. 

Jones v. Leslie, 5, 35. 

Jones v. Maher, 299, 304. 

Jones v. Seaboard Air Line R. Co., 202. 

Jones v. Trinity Parish Vestry, 11. 

Jordahl v. Hayda, 288, 307. 

Jordan v. State, 66. 

Josma v. Western Steel Car & Foundry 

Co., 270. 
Joyce v. Gt. Northern R. Co., 294, 295. 
Juniata Limestone Co. v. Fagley, 121. 
Jupiter Coal Min. Co. v. Mercer, 93, 

128. 

Kansas City, M. & B. R. Co., v. Burton, 

170. 
Kansas P. R. Co. v. Peavey, 145, 146. 
Kansas P. R. Co. v. Roberson, 9. 
Karges Furniture Co. ». Woodworkers' 

Union, 220, 221, 273, 277, 279, 313, 

322. 
Kealey v. Faulkner, 223, 226, 227, 232, 

251. 
Keane v. Boycott, 38. 
Keedy v. Long, 27. 
Keefe v. People, 78. 
Keenan v. New York, L. E. & W. R. 

Co., 161. 
Keith v. Kellermann, 13. 
Kellogg v. Insurance Co., 10. 
Kelly v. Wheel Co., 10. 
Kellyville Coal Co. v. Harrier, 66, 67. 
Kellyville Coal Co. v. Petraytis, 122. 
Kellyville Coal Co. ». Strine, 129. 
Kentucky Coal Min. Co. v. Mattingly, 

69. 
Kentucky C. R. Co. v. Gastineau, 177. 
Kiley v. Chicago, etc., R. Co., 153. 
Kimmer v. Weber, 161. 
King v. Western Union Tel. Co., 263. 
King, Ex parte, 99. 

Kinnan v. Fidelity & Casualty Co., 181. 
Kirby-Dennis Co., In re, 64. 
Kirk v. Hartman, 10. 
Kirkham v. Wheeler-Osgood Co., 104. 
Kissam v. Printing Co., 243, 244. 



LIST OF CASES CITED 



355 



Klatt v. Lumber Co., 93, 128. 
Knisley v. Pratt, 93, 95, 129, 141. 
Knoxville Iron Co. v. Harbison, 66. 
Knudsen v. Benn, 268, 272, 278. 
Koehler v. Buhl, 28. 
Kootenai County v. Hope Lumber Co., 

206. 
Koplitz v. Powell, 29, 30. 
Krause v. Morgan, 128. 
Rrause v. Sander, 233. 

Lacey v. Getman, 31. 

Lake Shore & M. S. R. Co. v. Baldwin, 
117. 

Lake Shore & M. S. R. Co. v. Spangler, 
144. 

Lambert v. Hartshorne, 26. 

Lancaster v. Hamburger, 37. 

Landgraf v. Kuh, 129. 

Lang v. Simmons, 45. 

Langan v. Tyler, 1, 177. 

Langham v. State, 39. 

Langmade v. Olean Brewing Co., 238. 

Larabee v. New York, etc., R. Co., 91. 

Larson v. Haglin, 174. 

Latham v. Barwick, 15, 17. 

Lawlor v. Merritt & Son, 248. 

Lawrence v. Gullifer, 3. 

Lawrence v. Rutland R. Co., 52, 67. 

L. D. Willcutt & Sons Co. v. Brick- 
layers, 214, 215, 229, 236, 320. 

Leary v. Boston & A. R. Co., 144. 

Leas v. Pennsylvania Co., 147. 

Leatherberry v. Odell, 26. 

Leathers v. Tobacco Co., 104. 

Leep v. St. Louis, etc., R. Co., 54, 67. 

Lees v. United States, 120. 

Lehigh Valley Coal Co. v. Jones, 161. 

Lenahan v. Pittston Coal Min. Co., 104. 

Lennon v. Lake Shore, etc., R. Co., 305. 

Lennon, Ex parte, 311. 

Lennon, In re, 305, 311, 314, 328. 

Levin v. Cosgrove, 233, 297. 

Lewis v. Board, 241. 

Lewis v. Tilton, 224. 

Lewis Co. v. Scott, 26. 



Lindsay v. Montana Fed. of Labor, 

257, 283, 288, 291, 309. 
Lippus v. Watch Co., 27. 
Little Miami R. Co. v. Stevens, 163. 
Little Rock & Ft. Scott R. Co. v. Eu- 

banks, 144. 
Litzenberg v. Trust Co., 64. 
Lloyd v. Loring, 225. 
Lloyd v. R. Co., 75, 77. 
Local Union Textile Workers v. Bar- 
rett, 220. 
Lochner v. New York, 4, 5, 8, 77, 

78. 
Loewe v. Cal. Fed. of Labor, 288, 309, 

313. 
Loewe v. Lawlor (2 cases), 214, 216, 

217, 255, 274, 287, 288, 293, 321. 
Lohse Patent Door Co. v. Fuelle, 251, 

257, 287, 289, 318, 321. 
London Guarantee Co. v. Horn, 36. 
Longshore Printing Co. v. Howell, 229. 
Loos v. Brewing Co., 28, 30. 
Lord v. Goldberg, 9. 
Lore v. Manufacturing Co., 104. 
Louis v. Elf elt, 32. 
Louisville R. Co. v. Hibbitt, 158. 
Louisville & N. R. Co. v. Baldwin, 113. 
Louisville & N. R. Co. v. Miller, 138. 
Louisville & N. R. Co. v. Woods, 151. 
Louisville, etc., R. Co. v. Offutt, 9. 
Low v. Rees Printing Co., 76. 
Low Moor Iron Co. v. Bianca's Adm'r., 

122. 
Lucas, Ex parte, 1 14. 
Lucke v. Clothing Cutters, 35, 216, 258. 
Lukic v. Southern P. R. Co., 159, 162, 

167. 
Luman v. Hitchens Bros. Coal Co., 70. 
Lumley v. Gye, 35, 38. 
Lumley v. Wagner, 13. 
Lupher v. Atchison, T. & S. F. R. Co., 

117. 
Luske v. Hotchkiss, 2, 73, 75. 
Lynch v. Metropolitan E. R. Co., 202. 
Lyon v. Callopy, 56. 
Lyon v. Pollard, 27. 



356 



LIST OF CASES CITED 



McCall v. Wright, 13. 

McCarthy v. Guild, 42. 

McCaull v. Braham, 13. 

McClurg v. Kingsland, 74. 

McCord v. Thompson-Starrett Co., 

245, 252. 
McCormick, In re, 325. 
McCown, Ex parte, 325. 
McCracken v. Hair, 3. 
McDermott v. Iowa Falls, etc., R. Co., 

117. 
McDonald v. Illinois C. R. Co., 34. 
McDonald v. State, 112. 
McGrath v. Merwin, 46. 
McGuire v. R. Co., 148. 
Mcintosh v. State, 18. 
McKay v. Hand, 131. 
McLean v. Blue Point G. M. Co., 161. 
McLean v. Publishing Co., 26. 
McLean v. State, 51. 
McLellan v. Young, 46. 
McMahon v. Rauhr, 224. 
McMillan v. Coal & Coke Co., 110. 
McMillan v. Spider Lake S. & L. Co., 122. 
McMillan v. Vanderlip, 12, 15. 
McMullen v. Dickinson Co., 24. 
McPhee's Estate, In re, 31. 
McVey v. Brendel, 247, 248. 
Macauley v. Tierney, 37. 
Mackall v. Ratchford, 327. 
Mackenzie v. Minis, 28. 
Magarahan v. Wright, 10. 
Mahoney v. Smith, 269. 
Main v. Field, 57. 
Malone v. Hathaway, 164. 
Mann v. Oriental Print Works, 166. 
Manowsky v. Stephan, 61. 
Marble Co. v. Ripley, 13. 
March v. Bricklayers' Union, 215, 229, 

240, 266, 286, 287, 301. 
Marier v. R. Co., 202. 
Marino v. Lehmaier, 104. 
Marriner v. Roper Co., 65. 
Marshall v. Norcross, 91. 

Marshall & Bruce Co. v. Nathville, 

241, 250. 



Martell v. White, 214, 215, 236, 246, 

286. 
Martin v. Atchison, T. & S. F. R. Co., 

178. 
Martin v. Chicago, R. I. & P. R. Co., 

141. 
Martin v. Insurance Co., 10, 11. 
Martin v. N. P. B. Association, 224, 

232. 
Marx v. Miller, 30, 31. 
Marx & Haas Jean Clothing Co. v. 

Watson, 288, 309. 
Maryland Steel Co. v. Marney, 152. 
Massie v. Cessna, 60. 
Master Horseshoers' Ass'n. v. Quin- 

livan, 217. 
Master Stevedores' Ass'n v. Walsh, 213. 
Mather v. Rillston, 126. 
Mathesius v. R. Co., 25. 
Matlock v. Williamsville, etc., R. Co., 

117. 
Matthews v. People, 208. 
Mattison v. R. Co., 294. 
Mayer v. Journeymen Stonecutters, 

219, 264, 266, 314. 
Maynard v. Corset Co., 10, 25. 
Medlin Milling Co. v. Boutwell, 202. 
Meehan v. Spiers Mfg. Co., 163, 178. 
Merrill v. Western Union Tel. Co., 25. 
Mexelbaum v. Limberger, 27. 
Mexican Amole Soap Co. v. Clark, 27. 
Meyers v. City of New York, 46. 
Miller v. City of Des Moines, 250. 
Miller v. Cuddy, 3. 
Miller v. Missouri P. R. Co., 163. 
Mills v. United States Printing Co., 241, 

279, 283. 
Mining Co. v. Cullins, 61. 
Minneapolis & St. L. R. Co. v. Herrick, 

146. 
Minot v. Snavely, 202. 
Missouri, K. & T. R. Co. v. Wood, 144. 
Missouri P. R. Co. v. Brinkmeier, 130. 
Missouri P. R. Co. v. Castle, 98, 153. 
Missouri P. R. Co. v. Flour Mills Co., 

91. 



LIST OF CASES CITED 



357 



Missouri P. R. Co. v. Mackey, 90, 171, 

196. 
Mitchell v. Pennsylvania Co., 145. 
Mobile & B. R. Co. v. Holborn, 171. 
Mobile, J. & K. C. R. Co. v. Hicks, 139. 
Mobile & M. R. Co. v. Smith, 163. 
Mobile, etc., R. Co. v. Clanton, 199. 
Mooneye. Conn. River Lumber Co., 133. 
Moore v. Central Foundry Co., 26. 
Moore v. Wabash, etc., R. Co., 130. 
Moores v. Bricklayers' Union, 301. 
Moran v. Dickinson, 81, 117. 
Moran v. Dunphy, 36. 
More v. Bennett, 216, 227. 
Morgan, In re, 77. 
Morgan v. Congdon, 61. 
Morris v. Neville, 40. 
Morris Coal Co. v. Donley, 90. 
Morton v. Detroit, etc., R. Co., 132. 
Moses v. Travelers' Ins. Co., 181. 
Mosgrove v. Zimbleman Coal Co., 128. 
Moss v. Decatur Land, etc., Co., 10. 
Mt. Vernon Woodberry Duck Co. v. 

Insurance Co., 184. 
Mulhall v. Fallon, 122. 
Mullaly v. Austin, 26. 
Muller v. Oregon, 5, 101, 103. 
Mumford v. Chicago, R. I. & P. R. Co., 

146. 
Murphy Hardware Co. v. Southern R. 

Co., 269. 
Murrell's Case, 39. 
Mutual Loan Co. v. Martell, 59. 
My Maryland Lodge v. Adt., 263, 281, 

283, 287, 288, 306. 
Myrup v. Friedman, 249. 

Naglebaugh v. Mining Co., 65. 

Narramore v. Cleveland, etc., R. Co., 
93, 94, 141, 145. 

Nashville, C. & St. L. R. Co. v. Ala- 
bama, 89, 113. 

National Fireproofing Co. v. Hunting- 
ton, 61. 

National Fireproofing Co. v. Mason 
Builders, 236, 244, 262, 264. 



National Protective Ass'n. ». Cum- 

ming, 213, 236, 243, 244, 257, 261, 

262, 264, 266, 276, 284, 296,303, 

317, 320. 
Naylor v. Iron Works, 32. 
New England R. Co. v. Conroy, 155. 
New Pittsburg Coal & Coke Co. v. 

Peterson, 156. 
New York Central, etc., R. Co. v. 

Williams, 53. 
New York City v. Miln, 93. 
New York, C. & St. L. R. Co.fl.Schaef- 

fer, 5, 33. 
New York, L. E. & W. R. Co. v. Bell, 

162. 
Newcomb t>. Boston Protective Dept., 

81. 
Newman, Ex parte, 80. 
Newton v. Pope, 199. 
Niagara Fire Ins. Co. v. Cornell, 253. 
Nickelson v. Stryker, 42. 
Nimmo v. Walker, 1. 
Nolan v. Danks, 17. 
Norfolk & W. R. Co. v. Bondurant, 117. 
Norfolk & W. R. Co. v. Commonwealth, 

80. 
Northern P. R. Co. v. Dixon, 154. 
Northern P. R. Co. v. Hambly, 158. 
Northern P. R. Co. v. Whalen, 43. 
Norton v. Brookline, 30. 
Norton v. Cow ell, 10. 

Oakes v. Moore, 61. 

O'Brien v. Chicago N. W. R. Co., 149. 

O'Brien v. Musical M. P. U., 219, 225, 

227, 228, 251. 
O'Brien v. People, 243, 267, 323, 324, 329. 
O'Connell v. Lumber Co., 67. 
O'Connor v. Armour Packing Co., 133. 
O'Connor v. Briggs, 31. 
O'Connor v. Walter, 57. 
Old Dominion S. S. Co. v. McKenna, 

216, 301. 
Olmsted v. Bach, 26. 
O'Maley v. South Boston Gas Light 

Co., 91, 93, 145. 



358 



LIST OF CASES CITED 



O'Neil v. Behanna, 273, 274, 301, 304. 
O'Reilly v. Pennsylvania Co., 148. 
Orient Ins. Co. v. Daggs, 68. 
Osborne v. Morgan, 199. 
Otis Steel Co. v. Iron Molders' Union, 

274, 277, 278, 319, 321. 
Otto v. Journeymen Tailors, 228, 230. 
Owens v. Baltimore & O. R. Co., 147. 
Owens v. Laurens Cotton Mills Co., 105. 
Owens v. State, 60. 
Oxley Stave Co. v. Coopers' Int. Union, 

252, 287. 

Pain v. Sample, 223. 

Palmer v. Van Santvoord, 64. 

Park v. Bushnell, 29. 

Parker v. Lumber Co., 97. 

Parker v. Piatt, 3. 

Parkinson Co. v. Building Trades Coun- 
cil, 233, 274, 284, 287, 291. 

Parrott, In re, 119. 

Patch Mfg. Co. v. Capeless, 220, 222, 304. 

Patch Mfg. Co. v. International Ass'n, 
301, 304. 

Patnote v. Sanders, 30. 

Patterson v. Building Trades Council, 
328. 

Patterson v. District Council, 220, 222, 
329. 

Patterson v. Pittsburg & C. R. Co., 173. 

Patterson v. State, 21. 

Patterson v. The Eudora, 23. 

Patton v. Texas P. R. Co., 139. 

Pauley v. Steam Gauge & Lantern Co., 
98. 

Payne v. Western & Atl. R. Co., 14, 37, 
71, 72. 

Peabody v. Norfolk, 13. 

Pearson v. Steamship Co., 180. 

Peel Splint Coal Co. v. State, 66, 70. 

Pembina Min., etc., Co. v. Pennsyl- 
vania, 67, 68. 

Pennington v. Lumber Co., 47. 

Pendergast v. Yanders, 64. 

Pennsylvania Co. v. Chapman, 147. 

Pennsylvania Co. v. City of Chicago, 271 . 



PennsylvaniaXo. v. Dolan, 9. 

Pennsylvania Co. v. Roney, 152. 

Peonage Cases, 22, 39. 

People v. Beattie, 114. 

People v. Bellet, 79. 

People v. Butler St. Foundry Co., 253. 

People v. City of Buffalo, 52. 

People v. Coler (2 cases), 49, 119. 

People v. Court, 325. 

People v. Detroit United Ry., 207. 

People v. Dwyer, 325. 

People v. Erie R. Co., 77. 

People v. Ewer, 101, 102. 

People v. Fisher, 248. 

People v. Grout, 79. 

People v. Hawkins, 123. 

People v. Lochner, 78. 

People v. McFarlin, 290, 292. 

People v. Marcus, 234. 

People v. Marx, 5. 

People v. Melvin, 267. 

People v. Metz, 8, 50, 79. 

People v. Musical M. P. U., 228, 231. 

People v. Myers, 10. 

People v. Remington, 64. 

People v. Smith (3 cases), 93, 216, 263. 

People v. Walsh, 216. 

People v. Warden, 210. 

People v. Warren, 118. 

People v. Williams, 102. 

Perkins v. Heert, 248. 

Perkins v. Pendleton, 297. 

Persons v. Bush Terminal Co., 95. 

Peters v. George, 167. 

Petit v. Minnesota, 79, 80. 

Phelan v. Stiles, 202. 

Philadelphia v. McLinden, 119. 

Philadelphia & R. R. Co. v. Derby, 

203. 
Philadelphia & R. R. Co. v. Hughes, 

133. 
Phcebe v. Jay, 31. 

Pickett v. Fidelity & Casualty Co., 182. 
Pickett v. Walsh, 214, 221, 222, 229, 

257, 261, 262, 264, 268, 276, 316, 320. 
Pierce v. R. Co., 9, 25. 



LIST OF CASES CITED 



359 



Pierce v. Stablemen's Union, 216, 264, 

271, 272, 278, 289, 290, 291, 307, 315, 

321. 
Pierce v. Van Dusen, 146. 
Pingree v. State Court of Mediation, 

335. 
Pioneer, The, 46. 
Pitcher v. New York, etc., R. Co., 93, 

128. 
Pittsburg, C. C. & St. L. R. Co. v. 

Chicago, 271. 
Pittsburg, C. C. & St. L. R. Co. v. 

Montgomery, 146. 
Pittsburg, etc., R. Co. v. State, 91. 
Pixler v. Nichols, 12. 
Plant v. Woods, 36, 244, 262, 267, 275, 

296, 316, 320. 
Pokanoket, The, 11. 
Polit). Coal Co., 111. 
Polk v. Daly, 24. 
Pope Motor Car Co. v. Keegan, 272, 

279, 313, 314, 322. 
Port of Mobile v. R. Co., 308. 
Potter v. Baltimore & O. R. Co., 149. 
Powell v. Sherwood, 146. 
Price v. People, 210. 
Purcell v. Southern R. Co., 166. 
Purdy v. Rome, etc., R. Co., 145. 
Purington v. Hinchcliff, 286, 287, 292, 

302, 304. 
Purvis v. Brotherhood, 216, 223, 262, 

286, 299, 302, 304, 313, 317, 320, 321. 

Quackenbush v. R. Co., 98. 

Quinn v. Leathern, 274. 

Quinn v. New York, etc., R. Co., 146. 

R. v. Blackburn, 226. 
Railroad Co. v. State Board of Arbi- 
tration, 336. 
Railway Co. v. Buck, 81. 
Railway Co. v. Greenwood, 72. 
Railway Co. v. Towboat Co., 81. 
Ramsden v. B. & A. R. Co., 203. 
Ramsey v. People, 51. 
Randolph v. Supply Co., 61. 



Raycroft v. Taintor, 261. 

Raynes v. Kokomo Ladder, etc., Co., 

64. 
Read v. Boston & A. R. Co., 81. 
Reed v. Stockmyer, 130, 166. 
Reid Ice Cream Co. v. Stephens, 14. 
Renaud v. State Board of Mediation, 

335. 
Renlund v. Mining Co., 122. 
Republic Iron & Steel Co. v. State, 53. 
Rescue, The, 11. 
Reynolds v. Black, 64. 
Reynolds v. Davis, 245, 251, 267, 268, 

274, 276, 320. 
Reynolds v. Everett, 307. 
Reynolds v. Merchants' Woollen Co., 

132. 
Rhoades v. Chesapeake & O. R. Co M 

27, 28. 
Rhode v. United States, 220, 226. 
Rhodes v. Granby Cotton Mills, 294, 

295. 
Rhodes v. Sperry, etc., Co., 95. 
Richards, Ex parte, 259. 
Richardson v. Kaufman, 56. 
Richardson v. Thurber, 63. 
Richmond v. Judy, 220, 224. 
Richmond & D. R. Co. v. Elliott, 132. 
Richmond & D. R. Co. v. Jones, 144. 
Richmond & D. R. Co. v. Rudd, 173. 
Ricks v. Yates, 12. 
Riding v. Smith, 42. 
Riley, Ex parte, 18. 
Ritchie v. People, 102. 
Ritchie & Co. v. Wayman, 103. 
Roberts v. Swift, 1. 
Robertson v. Baldwin, 23, 24. 
Robinson v. Cushman, 1. 
Robinson, Ex parte, 323. 
Rocky Mountain Telephone Co. v. 

Montana Fed. of Labor, 289. 
Roesner v. Hermann, 144. 
Rogers v. Evarts, 275, 276, 307. 
Rogers v. Smith, 42. 
Rohlf v. Kasemeier, 251, 253. 
Roquemore & Hall v. Mitchell Bros., 13. 



360 



LIST OF CASES CITED 



Ross v. American Emp. Liability Ins. 

Co., 182. 
Royal v. Grant, 47. 
Rubin v. Cohen, 47. 
Ruddy v. Journeymen Plumbers, 298. 
Runt v. Herring, 145. 
Russ v. Wabash W. R. Co., 167. 
Ryalls v. Mechanics' Mills, 170. 
Ryan v. City of New York, 49, 78. 

Sailors' Union v. Hammond Lumber 

Co., 323. 
St. Louis v. Gloner, 282, 322. 
St. Louis, A. & T. R. Co. v. Torrey, 166. 
St. Louis, A. & T. R. Co. v. Triplett, 

137. 
St. Louis, A. & T. R. Co. ». Welch, 158. 
St. Louis Cordage Co. v. Miller, 145. 
St. Louis & S. F. R. Co. v. Delk, 130. 
St. Louis Consol. Coal Co. v. Illinois, 

90, 93. 
St. Louis Dressed Beef, etc., Co. v. 

Casualty Co., 183. 
St. Louis, I. M. & S. R. Co. v. McCler- 

kin, 54. 
St. Louis, I. M. & S. R. Co. v. Math- 
ews, 9, 29. 
St. Louis, I. M. & S. R. Co. v. Paul, 54, 

67. 
St. Louis, I. M. & S. R. Co. v. Taylor, 

99, 128, 131. 
St. Louis, I. M. & S. R. Co. v. White, 92. 
St. Louis S. W. R. Co. v. Hixon £5, 

294, 295. 
St. Louis S. W. R. Co. v. Thompson, 

231, 232, 259. 
St. Paul Typothetse v. Bookbinders' 

Union, 219, 220, 222, 224. 
Salter t>. Howard, 38. 
San Antonio & A. P. R. Co. v. Wilson, 

54. 
Sands v. Potter, 32. 
Sanning v. Cincinnati, 59. 
Santa Clara Co. v. Southern P. R. Co., 

67. 
Savannah, etc., R. Co. v. Willett, 25. 



Savings Bank v. City of Clay Centre, 

312. 
Scarano v. Lemlein, 239. 
Schaezlein v. Cabaniss, 92. 
Schlang v. Waist Makers, 320. 
Schmalz v. Wooley, 248. 
Schmoll v. Lucht, 60. 
Schneider v. Local Union, 216, 231, 298, 

304. 
Schurr v. Savigny, 76. 
Scott, In re, 63. 
Screwmen's Ass'n. v. Benson, 219, 227, 

230. 
Seattle v. Smyth, 79. 
Seattle Brewing Co. v. Hansen, 309. 
Sedgwick v. Illinois C. R. Co., 136. 
Seeleyville Coal & M. Co. v. McGlosson, 

54, 60. 
Senate Bill No. 615, In re, 186. 
Shaffer v. Union Min. Co., 68. 
Shannon v. Union R. Co., 82. 
Shaver v. Ingham, 29. 
Shaver v. Lumber Co., 97. 
Shaver v. Pennsylvania Co., 146. 
Shay v. American Iron & Steel Co., 269. 
Sherry v. Perkins, 306, 307, 321. 
Shields v. Yonge, 105. 
Shine v. Fox Bros. Mfg. Co., 286, 288, 

321, 322. 
Shipwrights', etc., Ass'n. v. Mitchell, 

219. 
Short v. Bullion Beck Min. Co., 46, 75. 
Shortall v. Bridge, etc., Co., 66, 70. 
Shuler v. Omaha, etc., R. Co., 139. 
Silver State Council v. Rhodes, 217, 

317. 
Silverman, In re, 32. 
Simers v. Halpern, 240. 
Simon v. Bloomingdale, 203. 
Singer Mfg. Co. v. Fleming, 57, 60. 
Sinsheimer v. United Garment Work- 
ers, 290. 
Slade v. Arnold, 81. 
Slaughter House Cases, 316. 
Slomka, In re, 64. 
Small v. Hammes, 63. 



LIST OF CASES CITED 



361 



Smith v. Alabama, 77, 91, 112. 

Smith v. Dayton Coal & Iron Co., 111. 

Smith v. Foran, 204. 

Smith v. R. Co., 9. 

Smith v. Speed, 324. 

Smith v. Woolf, 90. 

Smith's Adm'r. v. Coal & Iron Co., 104. 

Smithwick v. Hall & U. Co., 150. 

Snow v. Wheeler, 226. 

Snyder v. Wright, 47. 

Solarz v. Manhattan R. Co., 81. 

Solomons v. United States, 74. 

Sommer v. Carbon Hill Coal Co., 90, 

129. 
Sourse v. Marshall, 223. 
Southern Pacific Co., In re, 338. 
Southern R. Co. v. Barr, 162. 
Southern R. Co. v. Fulford, 55. 
Southern R. Co. v. Machinists' Local 

Union, 273. 
Spencer, Ex parte, 102. 
Stagg v. Edward Western Tea & Spice 

Co., 131, 175. 
Starnes v. Manufacturing Co., 102. 
State v. Bishop, 248, 249. 
State v. Briggs, 114. 
State v. Brown & Sharpe Mfg. Co., 52, 

67. 
State v. Buchanan, 103, 259. 
State v. Cantwell, 77. 
State v. Chapman, 20. 
State v. Chicago, etc., R. Co., 77. 
State v. Cleveland, etc., R. Co., 113. 
State v. Dalton, 258, 259, 266, 298. 
State v. Dolan, 79. 
State v. Donaldson, 264, 274, 320. 
State v. Dyer, 267. 
State v. Easterlin, 20. 
State v. Fire Creek Coal Co., 70. 
State v. Gardner, 114. 
State v. Glidden, 258, 289. 
State v. Goodnight, 308. 
State v. Goodwill, 67. 
State v. Granneman, 79- 
State o. Hagan, 248. 
State v. Hall, 82. 



State v. Haun, 58, 67. 

State v. Holland, 250. 

State v. Hurlburt, 59. 

State v. Hyman, 89, 93. 

State v. Johnston, 334. 

State v. Judge, 312. 

State v. Julow, 234. 

State v. Justus, 295. 

State v. Kreutzberg, 234. 

State v. Loomis, 67. 

State v. McGee, 300. 

State*. McMahon, 112. 

State v. Missouri P. R. Co., 77. 

State v. Missouri Tie & Timber Co., 5, 

66. 
State v. Montgomery, 248. 
State v. Muller, 103. 
State v. Murlin, 109, 172. 
State v. Murray, 21. 
State v. Napier, 210, 211. 
State v. Northern P. R. Co., 77. 
State v. Paint Rock Coal & Coke Go., 

66. 
State v. Peel Splint Coal Co., 51. 
State v. Roberson, 211. 
State v. Ryan, 333. 
States. Sharpless, 114. 
State v. Shepherd, 324. 
State v. Shorey, 101, 102. 
State v. Smith, 113, 114. 
State v. Standard Oil Co., 68. 
State v. Stockford, 246, 262, 267, 274, 

300, 320. 
State v. Thompson, 77. 
State v. Toole, 241. 
State v. Vann, 18. 
State v. Van Pelt, 274, 284. 
State v. Vickens, 89, 93. 
State v. Walker, 115. 
State v. Whitaker, 90. 
State v. Williams, 20. 
States. Zeno, 114. 
Steamboat Co. v. Brockett, 203. 
Stearns v. Ontario Spinning Co., 139. 
Stearns v. R. Co., 9. 
Steen v. St. Paul & D. R. Co., 138. 



362 



LIST OF CASES CITED 



Stehle v. Jaeger Automatic Machine 

Co. (2 cases), 104, 105, 106. 
Steinert & Sons Co. v. Tagen, 270, 323. 
Steinert v. United Brotherhood, 225, 

228. 
Stephens v. Hannibal & St. J. It. Co., 

163. 
Stevens v. R. Co., 199. 
Stevenson v. Newnham, 37. 
Stewart v. Ferguson, 91. 
Stewart v. Thayer, 81. 
Stockbridge v. Crooker, 3. 
Stodden v. Manufacturing Co., 175. 
Stone v. Bancroft, 15, 26, 73. 
Stone v. Goss, 13. 

Stone's Adm'r. v. Union P. R. Co., 144. 
Storey v. Transportation Co., 73. 
Street v. Varney Electric Supply Co., 

49. 
Stryker, In re, 46. 

Sturgiss v. Atlantic C. L. R. Co., 149. 
Suddath v. Gallaher, 64. 
Sullivan v. Western Union Tel. Co., 269. 
Sutton v. Bakery Co., 129. 
Swann v. Swann, 80. 
Sweeny v. Gulf, etc., R. Co., 167. 
Sweeny v. Hunter, 57. 
Swenson v. Osgood & Blodgett Co., 97. 

Tarbell v. Rutland R. Co., 145. 

Tarpley v. State, 39, 40. 

Tatterson v. Manufacturing Co., 11. 

Taylor v. Blanchard, 13. 

Telephone Co. v. Kent, 310. 

Telfer v. Lambert, 81. 

Templar v. State Board, 115, 120. 

Ten-hour law, In re, 67, 78. 

Tennessee Coal, etc., Co. v. Pierce, 10. 

Terre Haute & I. R. Co. v. Baker, 55. 

Terry, Ex parte, 323. 

Texas P. R. Co. v. Reed, 167. 

Texas M. R. Co. v. Morris, 9. 

Thacker Coal & Coke Co. v. Burke, 301. 

Thomas v. Cincinnati, etc., R. Co., 

275, 285, 288, 323, 325. 
Thomas v. Walnut Land Co., 46. 



Thompson v. Locomotive Engineers, 

228. 
Thompson v. Phelan, 51. 
Thorpe v. White, 16, 51. 
Thum t>. Tloczynski^l3, 14. 
Tichenor v. Bruckheimer, 16. 
Tillar v. Reynolds, 203. 
Tire Repair Co. v. Price, 41. 
Toland v. Stevenson, 32. 
Toledo, etc., R. Co. v. Long, 53, 67. 
Toledo, etc., R. Co. v. Pennsylvania 

Co., 259, 272, 289, 304, 305, 320, 321, 

328. 
Toney v. State, 22. 
Toronto, The, 269. 
Townsend v. State, 288. 
Traction Co. v. Brennan, 61. 
Tracy v. Banker, 248, 249. 
Tubbs v. Cummings Co., 10. 
Tucker v. Coal, etc., Co., 10. 
Tullis v. R. Co., 196. 
Tuttle v. Detroit, etc., R. Co., 83, 127, 

143. 
Tyler Cotton Press Co. v. Chevalier, 26. 

Underhill v. Murphy, 259, 304, 325. 
Union P. R. Co. v. Fort, 105, 106. 
Union P. R. Co. v. Ruef, 213, 229, 245, 

253, 261, 263, 272, 273, 278, 281, 

310, 313, 316, 319, 321. 
Union Sawmill Co. v. Felsenthal, 66, 68. 
Union Trust Co. v. Southern Sawmills 

& Lumber Co., 64. 
United Garment Workers v. Davis, 249. 
United States v. Agler, 311. 
United States v. Cassidy, 258. 
United States v. Debs, 214, 222, 255, 

308, 311, 314. 
United States v. Driscoll, 191. 
United States v. Elliott, 307. 
United States v. Gordon, 259. 
United States v. Haggerty, 267, 276, 

321, 326. 
United States v. Kane, 318, 326. 
United States v. Martin, 73, 75. 
United States v. Raish, 286, 293. 



LIST OF CASES CITED 



363 



United States v. Weber, 326. 

United States v. Workingmen's Amal. 

Council, 254, 307, 321. 
United States Cement Co. v. Cooper,93. 
United States Heater Co. v. Iron Mold- 

ers' Union, 224, 312. 
Unnewehr Co. v. Insurance Co., 184. 
Utter v. Chapman, 25. 

Vance r. State, 21. 

Vanuxem v. Bostwick, 32. 

Vegelahn v. Guntner, 277. 

Vilter Mfg. Co. v. Humphrey, 311, 325, 
329. 

Vilter Mfg. Co. v. Otte, 161. 

Vindicator Consol. Min. Co. v. First- 
brook, 169. 

Virginia & N. C. Wheel Co. v. Chalk- 
ley, 172, 173. 

Vitto v. Keogan, 161. 

Vogel v. Pekoe, 60. 

Von Heyne v. Tompkins, 28. 

Vosberg v. Lumber Co., 98. 

Wabash R. Co. v. Hannahan, 273, 275, 

276, 296, 320. 
Wabash R. Co. v. Kelley, 51. 
Wabash R. Co. v. McDaniels, 125. 
Wabash R. Co. v. Young, 36, 293, 295. 
Wagner v. Chemical Co., 141. 
Waiczenko v. Oxford Paper Co., 178. 
Walker v. Cronin, 35, 38, 267. 
Walker v. Gillett, 162. 
Wallace v. Floyd, 47. 
Wallace v. Georgia, C. & N. R. Co., 34. 
Wallace v. John A. Casey Co., 202. 
Walsh v. Ass'n. of Master Plumbers, 

282. 
Walsh v. New York & Ky. Co., 16, 52. 
Walton v. Goodwin, 27. 
Warax v. Cincinnati, etc., R. Co., 202, 

204. 
Warner v. Smith, 2, 3. 
Washington & G. R. Co. t>. McDade, 

143. 
Wass v. State Board, 115. 



Waterhouse v. Comer, 227, 237, 255. 

Waters-Pierce Oil Co. v. State, 217,218. 

Watkins, Ex parte, 311. 

Watts v. Commonwealth, 210. 

Waugh v. Shunk, 3. 

Webber v. Barry, 274. 

Weed v. Burt, 26. 

Weener v. Brayton, 247. 

Weidman v. United Cigar Stores Co., 11. 

Weiss v. Musical M. P. & B. U., 225, 

231. 
Wenham v. State, 102, 103. 
Western & A. R. Co. v. Bishop, 145. 
Western Furniture Co. v. Bloom, 93, 97, 

145. 
Western Real Estate Trustees v. 

Hughes, 203. 
Western Union Tel. Co. v. Milling Co., 

111. 
Western Union Tel. Co. v. Myatt, 334. 
Wheatley v. Miscal, 16. 
Wheeling, B. & T. R. Co. v. Gilmore, 

77. 
White v. Atkins, 16. 
White v. Stanley, 64. 
Whitmore v. Werner, 10. 
Wichita & W. R. Co. v. Davis, 152. 
Wiggins Sons Co. v. Cott-A-Lapp Co., 

13. 
Wilder v. Stanley, 199. 
Wilkinson v. Black, 25. 
Will cut & Sons Co. v. Bricklayers, 

214, 215, 229, 236, 320. 
Willett v. Jacksonville, etc., R. Co., 

294. 
Willey v. Warden, 73. 
Wm. Rogers Mfg. Co. v. Rogers, 13. 
Williams v. Eggleston, 78. 
Williams v. Fears, (2 cases), 211. 
Williams v. Hastings, 81. 
Williams v. Thacker Coal & Coke Co., 

110, 134. 
Williams, Ex parte, 282. 
Willis v. Muscogee Mfg. Co., 33, 293, 

294. 
Willner *. Silverman, 217, 294. 



364 



LIST OF CASES CITED 



Wilmington Min. Co. v. Fulton, 89, 

109, 111, 172. 
Wilson v. Josephs, 57. 
Winkler v. Racine Wagon Co., 25. 
Winn v. Southgate, 16. 
Winrod v. Walters, 64. 
Withey v. Bloem, 103. 
Wollman v. Fidelity & Casualty Co., 

183. 
Woodward v. Washburn, 42. 
Word v. Winder, 14. 
Worden v. Searls, 312, 330. 



Workingmen's Amal. Council v. United 

States, 254, 312. 
Wonnell v. Maine C. R. Co., 131. 
Wright v. R. Co., 56. 
Wright v. Southern R. Co., 139. 
Wright v. Turner, 15. 
Wright v. Vocalion Organ Co., 74. 
Wyeman v. Deady, 223, 300, 303, 304. 

Yick Wo v. Hopkins, 119. 

Zender v. Seliger-Toothill Co., 11. 



INDEX 



Abandonment of railroad trains, etc., 
22, 271, 272. 

Accident insurance (see Insurance). 
Accidents — provisions for, 87. 

reports of, 87, 88. 
Age as condition of employment, 116, 

117. 
Age, effect of misrepresentation of, 

105, 138. 
Age limit for employment of children, 

100. 
Age of employee as ground for dis- 
charge, 28, 29. 
Agency, principles of, as affecting labor 

organizations, 224, 238. 
Alien contract labor, 120. 
Alien laborers, taxing employers of, 

121. 
Aliens — discrimination against, 115, 

118-121. 
employment of, on public works, 118, 

119. 
non-resident beneficiaries of deceased, 

121, 122. 
Antitrust law, federal, violations of 

enjoinable, 321. 
Antitrust laws, 253-256, 292, 293. 
Apprentices, 23. 

Arbitration (see Mediation and arbi- 
tration) . 
Assignments of wages, 56-60. 
Associations, cooperative, 207. 
Associations of workmen (see Labor 

organizations). 
Assumption of risks (see Employers' 

liability) . 
Attachment, etc., of wages, 55-57. 
Attorneys' fees in suits for wages, 60, 

61. 

Badges of labor organizations, 250. 
Bakeries, regulation of, 74, 84, 89, 90. 
Barrooms, payment of wages in, 55. 



Barbers, examination and certification 

of, 108, 114, 115. 
Benefit societies — effect of payments 
by, 146-149. 
forced contributions to, 51. 
Blacklists — lawfulness of, 293, 294. 

statutes prohibiting, 295. 
Bonds of employees, 200, 201. 
Bonds to secure payment of wages, 62, 

63. 
Boycotts — definitions of, 282, 283. 
enjoinable when, 318, 319. 
legality of, 284-291. 
primary and secondary, 289-291. 
publication of notice of, 284, 288, 289. 
statutes prohibiting, 291-293. 
Breach of contracts (see Contracts of 

employment, breach of). 
Bribery of employees, 41. 
Bribery of members of labor organiza- 
tions, 234, 235. 
Buildings, protection of employees in 
construction, etc., of, 86, 87, 90, 
91. 
Bureaus of information (see Employ- 
ment offices). 
Bureaus of labor, 211, 212. 

Certified employees, 108-116. 

liability of employers for acts of, 
109-111, 133, 134. 
Children — age limit for employment 
of, 100. 

earnings of, 106. 

employment of, in certain occupa- 
tions prohibited, 100, 101. 

employment of, regulation of, 100- 
107. 

hiring out to support parents in idle- 
ness, 106, 107. 

hours of labor of, 101. 

rights of parents for damages for 
injuries to, 105, 106. 



365 



366 



INDEX 



Children — Continued. 

unlawful employment of, as affect- 
ing employers' liability, 104, 105. 
Chinese, employment of, 118, 119. 
Civil rights of employees, 43, 44. 
Clearance cards, 33-35. 
Closed shop, 240-246. 

Government Printing Office, 241 
(note). 
Coal to be weighed before screening, 51. 
Collective ^.cts enjoinable when, 309, 

318. 
Collective agreements, 235-240. 
Combinations — as affecting legality 
of actions, 245, 254, 285. 
for what objects lawful, 213, 214. 
of labor and capital, status of, 215- 

219, 290. 
restrictive, 250-253. 
(see also Labor organizations.) 
Commerce, interstate, interference with 

enjoinable, 254, 255, 321. 
Commissioners of labor, 211, 212. 
Common law — code of, 341-345. 
statutes changing, 8, 9, 89, 111, 112 
(note), 169-172. 
Company doctors, 72. 
Company stores, 66, 69, 70. 
Compensation for injuries to employees, 

187-198. 
Competency of employees, 27, 28. 
Competition as justifying boycotts, 

etc., 284, 285, 287. 
Compliance with statutes, 98, 99, 129- 

131. 
Conspiracy — against workingmen, 
statutes prohibiting, 261, 299. 
causing interference with employ- 
ment, 298, 299. 
classes of, 258, 259. 
doctrine of, 257-261. 
Constitutionality of statutes, 8, 9. 
Contempts — civil and criminal, 329- 
331. 
criminal acts as, 331. 
direct and constructive, 323-325. 
interference with receiverships as, 

325, 326. 
labor organizations liable for, 329. 
passive, 325. 

power of courts to punish, 323, 324. 
punishment for, 328-330. 



statutes regulating, 324, 325. 

what constitutes, 323, 326-328. 

who liable for, 328. 
Contract — freedom of, 4, 5. 

grounds for interference with free- 
dom of, 6-9. 

limitations on freedom of, 6, 7. 

not to join unions, 296. 

of labor organizations, 235-240. 

to employ union labor, 240-242. 

waiving rights, 94, 95, 144-149. 
Contract of employment — breach of 
by employees, 14-16. 

breach of by employers, 24-27. 

breach of, endangering life, 22. 

change of circumstances as affecting, 
31, 32. 

conditions of, 2-5. 

deception in, 4. 

dissolution of, 30-33. 

effect on, of agreement to give satis- 
faction, 28, 29. 

effect on, of rules, customs, etc., 3. 

enforcement of, 12-15, 318, 319. 

enforcement of, statutory provisions 
for, 16-23. 

entire, 12, 15, 16. 

forms of, 1, 2. 

freedom to make, 4-7, 315, 316. 

implied, 1. 

interference with, 35-42, 296. 

must be in writing when, 1. 

procuring breach of, 35-42. 

repudiation of, damages for, 24-27. 

seamen, 23, 24. 

second during term of first, 21, 22. 

term of, 9-12. 

termination of, 30-33. 

with intent to defraud, 17-21. 
Contractors' bonds as protection for 

wages, 62, 63. 
Convict labor, 122, 123. 
Convict-made goods, sale of, 122, 123. 
Cooperative associations, 207. 
Cooperative insurance of workmen, 184, 

185. 
Corporations — as subjects of special 
laws, 67, 68 (note). 

liability of stockholders for wage 
debts of, 63. 
Course of employment, 175-177, 202, 
203. 



INDEX 



367 



Courts, relation of, to legislatures, 
8, 9. 

Crimes, restraint of commission of, by- 
injunction, 307, 308. 

Criminal acts as contempts, 331. 

Customs of trade, effect of, on con- 
tracts, 3. 

Damages — as remedy for breach of 
contract, 14-16, 24-27. 
awarded in injunction suits, 317. 
recoverable for interference with 
employment, 35-39, 294, 297, 298, 
300-304. 
who liable for, in strikes, etc., 304. 
Day of rest, weekly, 80. 
Death as affecting contracts of em- 
ployment, 30-32. 
Deceased employees, payment of wages 

due, 46. 
Discharge of employees — grounds for, 
27-30. 
statement of cause of, 33-35. 
Discharged employees — duty of, to 
secure other employment, 25, 26. 
payment of wages due, 53, 54. 
Discounts and bonuses to employees 

making purchases, 41. 
Domestic products, preference of, for 

public use, 118, 119. 
Duties of employers and employees, 
2,3. 
(see also Employers' liability). 

Eating in certain workrooms, 84. 
Emigrant agents, 210, 211. 
Employees — negligence of, 199-204. 
pensions for, 206, 207. 
right to recover damages for inter- 
ference with employment, 35-39, 
294, 297, 298, 300-304. 
special stock for, 206. 
taxes of, liability of employers for, 
205, 206. 
Employer and employee — basis of 
relation of, 1, 2. 
inequality of, as parties to contract, 

6, 7, 53, 72, 216, 251, 252 (note), 
joint liability of, for injuries, 204. 
status of, how determined, 2-4. 
Employers' advances, 17-21. 
Employers' certificates, 33-35. 



Employers' liability for injuries to 

employees, 124-186. 
acts of certified employees, 109-111. 
appliances, rule as to, 126, 127. 
association theory of, 158, 159. 
assumption of risks, 93-98, 140-144. 
assurance of safety, 174, 175. 
care, rule as to, 124-126. 
care, standard of, fixed by statute, 

127-131. 
common employment, 157, 158. 
comparative negligence, 152, 153. 
compliance with statutes as affect- 
ing, 93-97, 129. 
contemplated risks, 158, 159. 
contracting out, 144-149. 
contracts with labor organizations, 

179, 180. 
contributory negligence, 149-152. 
customary method or use, departure 

from, by employee, 131. 
dangerous occupations as affecting 

degree of care, 125, 126. 
defenses of employers, 139-169. 
departmental doctrine, 159, 160. 
details of work, 178, 179. 
direct orders of employers, 173, 174. 
duties of employers, 124-138. 
fellow-servants, duty in hiring, 135, 

136. 
fellow-service, defense of, 153-172. 
fellow-service rule, reasons for, 155, 

156. 
fellow-service, theories of, 158-167. 
inspection, duty of employer as to, 

131-135. 
inspections, government, effect of, 

133, 134. 

instructions and warnings to employ- 
ees, 137, 138. 

instrumentalities, supply of, 126. 

insurance, 180-184. 

labor organizations, contracts with, 
179, 180. 

law determining, 124. 

maintenance and repair, 130, 131. 

negligence, 139. 

non-delegable duties of employer, 138. 

ownership of appliances, effect of, 

134, 135. 

place and instrumentalities, 126, 127. 
repairs, 130, 131. 



368 



INDEX 



Employers' liability — Continued. 
repairs, effect of promise to make, 

172, 173. 
rules, duty to make, 136, 137. 
rules shifting liability, 144. 
safe place, 126, 127. 
statutes modifying, 169-172. 
Sunday labor in violation of statute, 

80, 81. 
variation of course of employment, 

175-178. 
vice-principals, 160, 163-167. 
violation of statutes, 93-98, 127-129. 
" volenti non fit injuria," 140. 
volunteers, 1, 177, 178. 
working force, 135, 136. 
Employers' liability to third persons 
for negligence of employees, 201- 
204. 
Employers, right of, to recover damages 
for interference with employees, 
37-40, 301, 302, 317. 
Employment, discrimination in, pro- 
hibited, 5. 
Employment, foremen, etc., accepting 

fees for furnishing, 211. 
Employment, new, duty of employee 

to seek, after discharge, 25, 26. 
Employment, offer of different, by 
employer after breach of contract, 
26. 
Employment offices, 208-211. 
Enforcement of labor contract, 12-16. 

statutes providing for, 16-23. 
Engineers, examination and licensing 

of, 109, 112, 116. 
Enticing employees, 35-40. 
Equity control of labor organizations, 

225, 306-317. 
Erdman Act, mediation and arbitra- 
tion under, 337-340. 
Examination and licensing of workmen, 
108-116. 
grounds for, 112-116. 
Exemption of wages from garnishment, 
etc., 55-57. 

Factory regulations, 83, 84, 89, 90. 

Fees for employment, foremen, etc., 
receiving, 211. 

Fellow-service (see Employers' lia- 
bility). 



Fines by labor organizations, 214, 215, 
226-230, 240, 266, 267, 286, 301, 
327. 

Fines for imperfect work, 50, 51. 

Fines on non-members by labor organi- 
zations, 266, 286, 301. 
recovery of, 301. 

Fire escapes on factories, etc., 83. 

Food not to be eaten in certain work- 
rooms, 84. 

Foremen, etc., receiving fees for em- 
ployment, 211. 

Freedom of contract, 4-6, 315, 316. 
statutes affecting, 5-9. 

Freedom of employer to fix physical 
conditions, 83, 93-98, 115, 116, 
127. 

Freedom of speech, 284, 288, 289, 308- 
310, 327, 328. 

Freedom to trade, 70-72. 

Full crew on railroad trains, laws re- 
quiring, 85, 91. 

Garnishment of wages, 55-57. 
Guards for dangerous machinery, 83, 
84, 89, 92. 

Hiring by day, week, month, or year, 

effect of, 9-11. 
Horseshoers, examination and licens- 
ing of , 109, 114. 
Hospital fees, withholding, 51. 
Hours of labor — in bakeries, 74, 78. 

in mines, etc., 74, 77. 

of women and children, 101-103. 

on public works, 74, 75, 78, 79. 

on railroads, 74, 76-78. 

regulation of, 73-79. 

Illiterate engineers, etc., on railroads, 

116. 
Implied contracts, 1. 
Implied term of contracts of employ- 
ment, 9-11. 
Incompetence — as affecting wage 
rates, 47, 48. 
as ground for discharge, 27, 28. 
Injunctions — antitrust act enforceable 
by, 321. 
appeals from, 312, 313. 
award of damages, 317. 
binding when, 310-313. 



INDEX 



369 



Injunctions — Continued. 

"blanket injunctions," 313, 314. 
bonds in cases of, 310, 311. 
boycotts subject to when, 318, 319. 
classes of, 305, 306. 
criminal acts, as such, not subject 

to, 307, 308. 
disclosure of trade secrets, 13, 14. 
effect of statutes legalizing labor 

organizations on, 314, 315. 
effect on persons not parties, 313. 
employment in violation of prior 

contract subject to, 13, 14. 
granted when, 306-308. 
incitement to strikes, 319-321. 
interference with contracts, 296, 297. 
interstate commerce, interference 

with, 308. 
irregularity in, effect of, 311. 
issued at whose instance, 308, 316, 

317. 
jurisdiction of state and federal 

courts, 310. 
labor organizations as parties, 217, 

221, 222, 313, 314. 
libel, as such, not subject to, 308-310. 
mails, hindering, 255, 308, 321. 
mandatory, 305. 
modern use of, 305. 
nature of, 305, 306. 
obedience required when, 311, 312. 
persons bound by, 313, 314, 328. 
persuasion subject to, 319, 320. 
picketing, 321-323. 
preliminary or interlocutory, 306. 
prevention of disruption of unions, 

217, 317. 
"probable expectancies" protected 

by, 316. 
protection of intangible rights by, 

315, 316. 
state may procure, 308. 
strikes subject to, when, 320, 321. 
validity of, how determined, 311, 

312. 
Injuries to employees — by third per- 
sons, 42, 43. 
compensation for, 187-198. 
employers' liability for, 124-186. 
Insolvency of employer, effect of, 32. 
Inspection — employers' duty as to, 

131-135. 



of factories, etc., laws relating to, 83, 
84, 89-93, 133. 
Inspectors' certificates, 98, 99. 
Inspectors, factory, 92, 93. 
Insurance — accident, freedom of em- 
ployees in procuring, 72. 

employers' liability, 180-184. 

mutual, of employers, 184. 

workmen's, 184-186. 
Interference with contracts of employ- 
ment, 35-42, 296. 

civil and criminal liability for, 304. 

damages for, 297-304. 

motive, 36-39, 297, 298. 

remedies for, 300-323. 

statutes prohibiting, 39-11, 299, 300. 
Interstate commerce, interference with, 

255, 256, 308. 
Intimidation of employers and em- 
ployees, 41, 42, 286-289, 297-300. 

by labor organizations, 298-300. 

statutes prohibiting, 299, 300. 
Intoxication of employees, 201. 

procuring, 42, 43. 
Inventions of employees, 73, 74. 

Justification for interference with em- 
ployment, 274, 275. 

Labor agents, 210, 211. 
Labor as capital, 5, 253, 316. 
Labor bureaus, 211, 212. 

(see also Employment offices). 
Labor organizations — actions by and 
against, 217-224. 
antitrust laws as affecting, 253-256. 
applications for membership, 233. 
as affecting third parties, 214. 
badges of, 250. 

bribery of officers of, 234, 235. 
by-laws, rules, etc., of, 226-230. 
closed shop agreements of, 240-246, 

302, 303. 
coercion by, 229, 236, 240, 243, 246, 

273, 274, 286, 287, 326. 
collective agreements, 235-240, 245. 
contracts by, 224, 235-240. 
contracts of, effect on individual 

contracts, 237-239. 
contracts of, validity of, 235-237, 239. 
contracts to employ only members of, 
240-242. 



370 



INDEX 



Labor organizations — Continued. 
contracts with, as affecting employ- 
ers' liability, 179, 180. 
corporate character of, 219-226. 
damages for acts of, 231, 232, 239, 242. 
discharge of workmen on account of 

membership in, 233, 234. 
dissolution of, 227, 232, 251. 
embezzlement of funds of, 225, 226. 
enforcement of rules, etc., of, 226- 

229. 
enjoinable, 217, 221, 222. 
equity courts best suited to deal 

with, 225. 
exemptions affecting, 218, 253, 260. 
expulsion as interference with em- 
ployment, 297. 
expulsion of members, 225, 230-232, 

239, 297, 298. 
fines against, 222. 
fines by, 214, 215, 226-230, 240, 266, 

267, 286, 301, 327. 
incorporated, status of, 217, 218. 
interference, statutes prohibiting, 

299, 300. 
interference with employment by, 

295-300. 
labels or trade-marks of, 246-250. 
law governing, 217-226. 
legality of, 213, 214. 
liability of, for damages, 222, 223, 

297-299, 301-304. 
liability of, in contempt proceedings, 

313, 327-329. 
liability of members, 222, 223, 304. 
mandamus to restore membership in, 

231, 232, 304. 
membership in, 230-234. 
nature of, 213-217. 
numbers, coercive effect of, in, 245, 

254, 262, 274, 277. 
officials of, may advise members, 

275, 276, 296. 

organizers of, may not incite strikes, 

276, 320, 321. 

partnership character of, 219-221. 
payment of strike benefits by, 276. 
principals and agents in, 224, 238. 
protection of employees as members, 

233, 234. 
representative capacity of officers, 

296. 



restoration to membership, 231, 232, 

304. 
rival unions, 296-298, 302, 317, 

327. 
rules, by-laws, etc., of, 226-230. 
rules of, as affecting freedom of con- 
tract, 6, 213, 226. 
rules of, as defense in suits for dam- 
ages, 214-216, 229, 230. 
status of, 217-226. 
suits by and against, 217-224. 
unincorporated, status of, 218-226. 
voluntary character of, 213, 214, 
218, 219. 
Legislatures, authority of, 7-9. 
Letters of recommendation, 33-35. 
Liability for damages for interference 
with employment, 35-39, 294, 297, 
298, 300-304. 
Liability of employees for negligent 

acts, 199-201, 204. 
Liability of employers — for injuries by 
strikers, 269, 270. 
for injuries to employees (see Em- 
ployers' liability), 
for taxes of employees, 205, 206. 
to third persons for negligence of 
employees, 201-204. 
Libel, restraint of, by injunction, 308- 

310. 
Licensing of workmen, 108-116. 
Liens for wages, 61, 62. 
Life-saving service, injured employees 

in, 192. 
Limitations on freedom of contract, 

6-9. 
Liquor — sale of, near labor camps, 99. 
sale of, to employees, 42, 43, 99. 
taking, into mines, mills, etc., 99. 
use of, on trains, 99. 

Mails, interference with, enjoinable, 

255, 308, 321. 
Married women, earnings of, 106. 
Mechanics', etc., liens, 61, 62. 
Mediation and arbitration — boards of, 
how chosen, 332. 
construction of statutes relating to, 

334-340. 
definitions, 332. 

enforcement of awards, 333, 334. 
statutory provisions for, 331-333. 



INDEX 



371 



Mine employees, examination and 

certification of, 108, 109, 112. 
Mine foremen, certified, status of, 109- 

111. 
Mine regulations, 86, 90. 
Minors, earnings of, 106. 
Motive as element in interference with 

employment, 36, 37, 242, 245, 297, 

298, 303, 304. 
Motive of acts as affecting legality, 

274, 275. 

National Guard, protection of work- 
men as members of, 44. 

Negligence of employees, 199-204. 
joint liability for, 204. 
liability of employee for, 199-201. 
liability of employer to third persons 
for, 201-204. 

Negligence of employers, liability to 
employees for (see Employers' 
liability). 

Negligence of operators of steam boil- 
ers, etc., 200. 

Negligence, violation of safety laws as, 
93-97, 127-129. 

Night work by women and children, 
101, 103. 

Notice of termination of contract, 
32, 33. 

Orders — disobedience of, as grounds 
for discharge, 29. 
negligent, by employer, 173, 174. 
Overtime pay, 73, 75, 76. 

Payee of wages, who is, 46, 106. 
Payment of wages — due deceased em- 
ployees, 46. 

in scrip, 64-69. 

in violation of statute, 46, 47, 55. 

place of, 55. 

time of, as indicating term of con- 
tract, 9-11. 

time of, statutes regulating, 51-55. 

to discharged employees, 53, 54. 
Pensions for employees, 206, 207. 
Peonage, 18-21. 
Permanent employment, contracts for, 

9. 
Persuasion — enjoinable when, 319, 320. 

to strike, right of, 272-276. 



Physicians, freedom in selection of, 72. 
Picketing — enjoinable when, 321-323. 
lawfulness of, 276-281. 
statutes prohibiting, 281, 282. 
Plumbers, examination and regis- 
tration of, 109, 113, 114. 
Police power, 7-9. 
Preference of wage claims over other 

debts, 63, 64. 
Prison labor (see Convict labor). 
"Probable expectancies," doctrine of, 

316. 
Profit-sharing by employees, 206. 
Property, right to employment as, 

5, 6, 315, 316. 
Protection of employees — as members 
of labor organizations, 233, 234. 
as members of National Guard, 44. 
as traders, 70-72. 
as voters, 43, 44. 
Public printing, union label on, 249, 

250. 
Public work, closed shop agreements 

in, 240, 241. 
Public works — employment of resident 
laborers on, 118, 119. 
hours of labor on, 74, 75, 78, 79. 
preference of domestic products for, 

118, 119. 
rates of wages on, 48-50. 

Quantum meruit, when action may be 
brought, 3, 47. 

Railroad employees, examination and 
certification of, 108, 112, 113, 
116. 
Railroad repair shops to be maintained 

within the state, 120, 121. 
Railroad trains — abandonment of, 22, 
271, 272. 
special, for workingmen, 207. 
sufficient crews for, 85, 91. 
Railroads — employment of illiterate 
engineers, etc., on, 116. 
hours of labor on, 74, 76-78. 
liability laws affecting, 171, 172. 
safety appliances on, 85, 89-92. 
Railway mail clerks, injured, 192, 193. 
Rate of wages, 3, 47-50. 
changing, 47, 48. 
regulation by statute, 48-50. 



372 



INDEX 



Ratification by employer of negligent 
acts of employee, 203, 204. 

Refusal to deal, 254, 283-285. 

Registration of workmen, 108-116. 

Relief benefits, 146-149. 

Resident laborers, preference, in em- 
ployment, 117-121. 

Respondeat superior, doctrine of, 201, 
202. 

Restraining orders (see Injunctions). 

Right to contract, 4, 5, 315, 316. 

Rights of employees — as traders, 70-72. 
as voters, 43, 44. 

Rules of employer as affecting con- 
tracts, 3. 

Safe place, common law as to, 126, 127. 
Safe place and appliances, statutes 

requiring, 83-99. 
Safety appliances — in factories, 83, 84, 

89, 90. 
on railroads, 85, 89-92. 
Safety laws — constitutionality of, 88- 

92. 
disobedience of, as affecting em- 
ployers' liability, 93-98, 127-129. 
enforcement of, 92, 93. 
Salary and wages, 45, 46. 
Satisfactory services, test of, 28, 29. 
Scrip, tokens, etc., payment of wages 

in, 64-69. 
Seamen, contracts of employment of, 

23, 24. 
Seats for female employees, 103, 104. 
Service, variation of, 29, 30. 
Sickness, effect of, on contract of 

employment, 16, 31, 32. 
Special legislation, 171, 172. 
Specific performance of contracts of 

employment, 12-15. 
Statutes modifying common law, 8, 9, 

89, 111, 112 (note), 169-172. 
Steam boilers, inspection of, 84. 
Stevedores' bonds for wages, 62. 
Stock, special, for employees, 206. 
Stockholders of corporations, liability 

of, for wage debts, 63. 
Store orders as payment for wages, 

65-70. 
Street railways, safety appliances, etc., 

on, 86. 
Strike benefits, 276. 



Strike insurance, 272. 

Strike notices, 266. 

Strikers as trespassers, 273, 274. 

Strikes — definition of, 261, 262. 

effect of, on duty of employers, 269, 

270. 
effect of, on relation of employer 

and employee, 263, 264, 272, 273. 
failure to render service because of, 

269. 
fear of injury during, as excuse for 

violation of contract, 269, 270. 
incitement of, 271-276. 
incitement of, enjoinable when, 320, 

321. 
injuries to employees accepting 

service during, 270. 
injuries to third persons during, 269. 
legality of, how determined, 262- 

266, 271. 
liability of municipalities for dam- 
ages caused by, 271. 
notice of, in advertisements for 

laborers, 4, 270. 
of railroad employees, 22, 271, 272. 
participation in, notice of, not to be 

required, 270, 271. 
statutes authorizing, 271. 
sympathetic, 268. 
unlawful when, 266-268. 
Striking employees, status of, 263, 

264, 272, 273. 
Sufficient compliance with safety laws, 

98, 99, 135. 
Suits at law as remedies for interfer- 
ence with employment, 300-304. 
Suits for wages, 60, 61, 107. 
Sunday labor, 79-82. 

as affecting employers' liability, 80,81. 
as affecting recovery of wages, etc., 
81, 82. 

Taxes of employees, liability of em- 
ployers for, 205, 206. 

Term of contract of employment, 9-12. 

Tips to waiters, 41. 

Ton as basis for wage payments, 76. 

Trade agreements, 235-240. 

Trade-marks of trade-unions (see 
Union labels). 

Trade secrets, disclosure of, 13, 14. 

Trade-unions (see Labor organizations). 



INDEX 



373 



Trains, special, for workingmen, 207. 
sufficient crews for, 85, 91. 

Unfair lists, publication of, enjoinable 

when, 309, 310. 
Union labels — as trade-marks, 246-248. 
forgery, etc., of, 249. 
statutes protecting, 247-249. 
Union labor, contracts for exclusive 
employment of, 240-246. 

Violation of law by employee, effect 

of, on recovery of wages, 46, 81, 82. 
Violation of safety laws as negligence, 

93-98, 127-129. 
" Volenti non fit injuria," doctrine of, 

140. 
Volunteers, 1, 177, 178. 
Voters, protection of employees as, 43, 

44. 

Wage brokers, 57-60. 
Wage claims — preference of, 63, 64. 
sending outside state for collection, 

56, 57. 
Wages — assignments of, 56-60. 

contractors' bonds for security of, 

62, 63. 
deductions from, for benefit societies, 

etc., 51. 
deductions from, for imperfect work, 

50, 51. 
definition of, 45, 46. 
due deceased employees, 46. 
due discharged employees, 53, 54. 
for work done in violation of law, 

46, 81, 82. 
garnishment of, 55-57. 



improper payment of, 46, 47, 66- 
57. 

judgments for, 60. 

liability of stockholders of corpo- 
rations for, 63. 
liens for, 61, 62. 
of married women, 106. 
of minors, 106. 
of women, suits for, 106, 107. 
paid before breach of contract, 16. 
payment of, in scrip, 64-69. 
payable to whom, 46, 106. 
place of payment of, 55. 
prior payment of, in settlement of 

estates, etc., 63, 64. 
rate of, 47-50. 
recovery of, after breach of contract, 

15, 16. 
refusal to pay, 54, 55. 
retention of, as pledge, 55. 
suits for, 60, 61, 107. 
time of payment of, 51-54. 
withholding for benefit funds, hos- 
pitals, etc., 51. 
Waiver of provisions of safety laws, 

94, 95, 144-149. 
Weekly day of rest, 80. 
Weighing coal before screening, 51. 
Women and children, employment of, 

100-107. 
Women — hiring out, to support hus- 
bands in idleness, 107. 
hours of labor of, 101-103. 
wages of, 48, 106, 107. 
Workmen's compensation for injuries, 

187-198. 
Workmen's insurance, 184-186. 
Workmen's trains, 207. 



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THE MACMILLAN COMPANY 

Publishers 64-66 Fifth Avenue New York 



Principles of Exonomics 



By F. W. TAUSSIG, Henry Lee Professor of Economics in 

Harvard University. 

2 vols. Cloth, Svo t $4.00 net 



The book deals chiefly with the industrial conditions of modern 
countries, and most of all with those of the United States. 
Economic history and economic development are not con- 
sidered in any set chapters, being touched only as they happen 
to illustrate one or another of the problems of contemporary 
society. 

Among the important chapters are those on Wealth and Labor ; 
The Division of Labor and the Development of Modern In- 
dustry ; Quantity of Money and Prices ; Differences of Wages ; 
Wages and Value ; General Wages ; Trade-Unions and Labor 
Legislation. 

Of these perhaps the most important is that dealing with 
General Wages. Here the fundamental questions as to general 
wages as raised by the case of hired laborers is discussed ; also 
the notion that lavish expenditure creates demand for labor 
and makes wages high. 

The author explains why hired laborers universally desire that 
employment should be created and dislike labor-saving ap- 
pliances. 

The author states the principles of economics in such form that 
they are comprehensible to an educated and intelligent person 
who has not before made any systematic study of the subject. 



THE MACMILLAN COMPANY 

Publishers 64-66 Fifth Avenue New York 



DEC 1 1911 



One copy del. to Cat. Div. 



DEC I tfll 



, LIBF ^RY. OF CONGRESS 

027 292 788 1 



